Canadian Employment Law Today

CELT Oct 16 2013.qxp:celt 467.qxd 13-10-04 8:58 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: SEXUAL HARASSMENT Workplace policies can build a culture where harassment isn't tolerated ...continued from page 4 path to advancement within the organization will be limited or restricted outright — leading to increased absenteeism, decreased productivity, increased turnover, as well as deep cultural ramifications and even damage to the organization's employer brand or its ability to attract, retain and engage top talent. Proactive approach These are all reasons why employers must take a proactive approach when designing HR law policies and build a culture where employees understand that harassment simply won't be tolerated. Educating managers and employees on those policies, then ensuring their enforcement, is the key to the effective cross-organization implementation and adoption of any policy. Of course, the major impetus here is legislative — employers must take steps to prevent sexual harassment in their workplace. If an employee files a complaint with a provincial human rights tribunal, several factors will be assessed to determine whether the workplace policies and practices meet the requirements of local employment legislation. Some of those factors include: • Whether the organization has policies and procedures to manage the harassment complaint. • Whether management took the complaint seriously and dealt with it within a reasonable time frame. • Whether management devoted the necessary resources to investigate the complaint. • Whether the complainant was ostracized or pressured as a result of filing their sexual harassment grievance. Having a comprehensive HR policy manual and infrastructure is a crucial first step to preventing workplace sexual harassment, and it's one that many Canadian employers fail to take. Those policies should outline not only the behaviours that are deemed unacceptable, but also define a clear procedure for handling complaints. The policy should specify the management personnel responsible for investigating complaints, outline detailed steps to manage said investigation, and ensure confidentiality, as well as providing tactics to ensure the investigation is completed within a reasonable timeframe. But there is no point having policies if they're not followed. Every organization's employee orientation process should educate new recruits (from Csuite executives to junior hires) on acceptable workplace conduct, as well as provide an overview of applicable human rights legislation. Managers themselves need proper training to deliver this kind of education, particularly in situations where they may have been promoted through the ranks. Then it's a question of enforcement. Building an inclusive, welcoming culture that does not tolerate any sort of discrimination helps to mitigate the threat of workplace sexual harassment. While the question of how to build just such a culture is broad, it starts with an organization being intentional about cultivating the type of workplace culture it wants to have, rather than defaulting into an undesirable one. While any workplace, no matter how strong the culture, could be faced with an incident of sexual harassment, organizations that address the issue and resolve it swiftly by investigating allegations and disciplining perpetrators, have a far better chance to remain productive and inviting places to work where individuals feel secure and free to do their jobs. For employers, the lesson is clear: addressing sexual harassment before it becomes an issue in their workplaces is a far more favourable and cost-effective strategy than trying to manage an issue after it occurs and spirals out of control. That's when litigation may become necessary, penalties and fines could be imposed and lawyer's fees escalate dramatically. And that's not factoring in the potential negative media coverage that an organization may experience should a sexual harassment matter become public knowledge. The workplaces of the 21st century are very different from the ones in which our parents or grandparents cut their teeth. Inclusiveness, safety, respect and accountability are employment law and HR priorities, not to mention expectations held by the workforce. Employers, if they haven't already taken notice, need to embrace this reality and work to prevent issues, including sexual harassment, from damaging their workplace cultures and bottom-line business success. CELT For more information see: ■Janzen v. Platy Enterprises Ltd., 1989 CarswellMan 158 (S.C.C.). ABOUT THE AUTHOR Laura Williams Laura Williams is the founder and principal of Williams HR Law, a human resources law firm located in Markham, Ont., serving employers exclusively. Laura can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com. MORE CASES IN POINT To read about other cases in point featured in past issues of Canadian Employment Law Today, go to www.employmentlawtoday.com and click on "Advanced Search," where you can search for articles by keywords or department. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

• Cover