An employer’s recent application to dismiss a complaint at the BC Human Rights Tribunal—which the tribunal rejected—reminds us of the importance of training and policies to arm employees with the tools to respond appropriately to incidents of workplace sexual harassment.
In this case, the complainant employee worked at EVL Nursery Ltd. where she prepared orders of shrubs and grasses for shipping. She alleged that the truck driver from one of the company’s clients made several inappropriate and unwelcome comments to her. On one occasion, he offered her a massage while she was helping him load plants into his truck. She declined the massage and immediately reported the incident to her supervisor, who said that it was “too bad that it happened” but took no further action.
Later on, the same driver made another sexual remark to the employee after a sprinkler went off and splashed her while she was loading plants into his truck. She told a different supervisor about this incident and said that she was uncomfortable continuing to assist the driver. This supervisor expressed regret that the remark was made and promised to talk to the driver the next time he was on site. This did not happen because the driver never returned.
The company did not have a harassment policy in place. What’s more, it had not trained its employees on how to report a complaint or handle a complaint once reported. The complainant employee felt unsupported by her employer and feared seeing the driver again. She developed debilitating health issues as a result of living with the uncertainty.
In denying the employer’s application to dismiss the complaint, the adjudicator stated,
“Where a failure to address a complaint of discriminatory harassment results from an employer’s lack of process and policy, this could constitute a breach of an employer’s responsibilities under the Code. I am troubled that [the employer] appears to be advancing an argument that it can . . . ignore its responsibility to take required steps necessary to provide a harassment-free workplace and then purport to avoid any liability associated with the resulting confusion that arises.” [paras. 34-35]
None of the employees involved in this situation knew how to handle the report of sexual harassment, which the adjudicator suggested amounted to a failure on the company’s part. The two supervisors with whom Ms. Beharrell spoke did not escalate her concerns to a manager, nor did they speak to the truck driver (or his manager) about his behaviour. No investigation was done. The adjudicator stated that “an employer’s failure to provide a reasonable and appropriate response to its employee’s report of sexual harassment in the workplace is an adverse impact related to the protected ground of sex and, if proved, could violate s. 13 of the Code.” In other words, if an employer receives a complaint of sexual harassment by one of its employees, and it does not respond appropriately, the employer could also face a complaint that it discriminated against that employee on the basis of sex.
The two supervisors told Ms. Beharrell that they regretted that the comments were made to her, but did little else. Apart from offering empathy, how else might the company have handled this situation?
The adjudicator reaffirmed the three criteria from the 2005 Laskowska case that help to assess whether an employer’s response to complaints is reasonable. Every employer ought to keep these considerations front of mind:
- Awareness of issues of discrimination/harassment, policy, complaint mechanism and training
Employees who understand what behaviours are considered to be harassment and discrimination are less likely to engage in those behaviours at work, and are more likely to call out that behaviour when it occurs. For this reason, employers are advised (and legally required) to have up-to-date anti-harassment and discrimination policies in place. These policies should include a straightforward procedure on what to do to make a complaint. To ensure employees understand the policy and procedure, employers should also train their employees on how to spot harassment or discrimination in the workplace, and how to intervene in those situations as a bystander.
- Post-complaint: seriousness, promptness, taking care of its employees, investigation and action
An employer must take seriously any complaint or information about concerning conduct that is brought to its attention. Acting on the information would ordinarily involve conducting an investigation that is appropriate in the circumstances, and this is legally required in some jurisdictions. In any event, the employer must act promptly and sensitively in response to the complaint.
- Resolution of the complaint (including providing the complainant with a healthy work environment) and communication
At the end of the investigation, the employer must provide a reasonable resolution to the parties in the circumstances. This would include communicating the findings of the investigation to the parties, and providing the complainant with a safe and harassment/discrimination-free return to work.
Time and again, well-meaning yet unprepared employers run into trouble after allegations of sexual harassment are brought forward. In this climate of #MeToo, which has seen employees vocalize current and historical complaints of sexual harassment, employers must empower their employees with adequate policies, training, and follow-through after these concerns are brought to their attention. Halfhearted measures, no matter how sincere, just don’t cut it.