Canadian Employment Law Today

aration and the capacity to respond to mis- conduct. at starts by recognizing the need to de- velop a set of policies and procedures that define acceptable conduct expectations and hold everyone from the C-suite to rank-and- file employees accountable, with clear and consistently-applied consequences for poli - cy violations. Also, the focus should be on creating an incident-based harassment re- gime and not one designed to respond solely to employee complaints. e reason, as noted in the HRPA and Gandalf Group sur- veys, is that relatively few employees come forward when they are sexually harassed or assaulted in the workplace, largely due to a fear of retaliation by the alleged harasser or being ostracized by co-workers. Employees have role in prevention Policies should also set out the obliga- tions that all employees have to mitigate the risk of workplace sexual harassment. Employers should clearly outline workers' responsibility to report workplace sexual harassment, even if the misconduct isn't targeted towards them, or they're not directly involved in the alleged incident. Bystander reporting should be facilitated by ensuring mechanisms are in place to bring observations forward. Containing inappropriate behaviour requires a team effort, and when employees understand that they might face disciplinary action for not doing their part, the odds of com- pliance tend to increase dramatically. But part of taking workplace sexual ha- rassment seriously means also investing the necessary resources to adequately conduct comprehensive investigations. One of the most avoidable sexual harassment pitfalls relates to the risks associated with conduct - ing workplace investigations internally. Be- cause so few organizations have the internal resources to manage the task effectively, the majority that attempt an investigation on their own learn when it's far too late that their efforts fail to comply with legal re - quirements or accepted best practices. Unless an employer or its HR department has the experience and expertise to manage an investigation on its own, the organization should be prepared to seek assistance from a third-party HR consultant or employment lawyer to either provide guidance or to con - duct the investigation on a third-party basis. at may not only be an effective way to en- sure that an investigation is conducted ap- propriately, but may also be advisable because third-parties tend to be far more objective as they have no direct ties to the organization. We've seen multiple cases where man- agement feel their culture is healthy and respectful, but employees complain in exit interviews that harassment is widespread and pervasive. Maybe some organizations are free from sexual impropriety and unac - ceptable behaviour, but chances are that al- most every leadership team will be forced, at some point, to respond to an incident of alleged misconduct. It pays to be proactive, understand the risk associated with ignoring tell-tale signs or risky practices, and be ready to respond in a way that protects employees, the organization's workplace culture, its brand, and bottom-line performance. For more information see: • Doyle v Zochem Inc, 2017 CarswellOnt 1733 (Ont. C.A.). Canadian HR Reporter, a Thomson Reuters business 2018 May 9, 2018 | Canadian Employment Law Today CREDIT: ANDREY_POPOV /SHUTTERSTOCK ABOUT THE AUTHOR Laura Williams Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com. Relatively few harassed employees come forward due to fear of retaliation.

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