Guidance on appropriate investigations into inappropriate comments
As investigators, we see that harassment often comes in the form of derogatory comments about people’s racial and ethnic background, as well as their sex, gender identity and gender expression.
What we do not see as investigators, but can reasonably assume, is that these comments often go uninvestigated. Why? Because inappropriate comments can seem at once too numerous and too insignificant to address by those who might report them: the target of those comments, the bystanders that overhear them, as well as employers that are responsible for addressing them. Nevertheless, these comments are serious as they can be indicative of a work environment that permits discriminatory and harassment-like behaviour.
Conducting an investigation that is “appropriate in the circumstances”
The law on harassment investigations tell us that an employer must conduct an investigation that is “reasonable” and “appropriate in the circumstances.” Realistically, an employer cannot hire an external investigator for each inappropriate comment that slips from an employee’s mouth. Also, an employer’s response to a single derogatory comment will not be the same as its response to an incident of sexual assault. So how do we determine what is an “appropriate” process t to address this type of behaviour?
In the recent human rights case Gordon v. Best Buy Canada Inc., an employer was found to have failed to adequately respond to a complaint of harassment. This complaint was based on the following three incidents of inappropriate comments said to the applicant, who identified as Black and of Jamaican descent, by two different employees:
- “Aren’t all black people afraid of dogs? Is it true?”
- Saying a derogatory word in Somali to another employee in front of the applicant, and then saying a different non-derogatory Somali word to the applicant after the applicant asked the person to stop
- “Wow […] you really do fit every stereotype… you know, that black people like fried chicken”
By looking at the mistakes made by the employer outlined in this case, we can see what key elements are required for an appropriate investigation into an employee making derogatory comments.
What the employer did right
Once the employer became aware of these comments, its representatives, in collaboration with the human resources department, spoke to the two individuals who made these comments. During these conversations, they explained to these employees – who both said that they did not intend to harm the applicant – that “intent and perception” do not always align and that these comments did not reflect the employer’s values. Both were transferred to different schedules or locations so the applicant would not have to interact with them. The employer also implemented harassment training for all staff.
What the employer did wrong
The Vice-Chair outlined five reasons why the employer’s responses to the applicant’s complaints were inadequate:
- After the applicant told one supervisor about the first comment, the supervisor laughed and said that the person who made the comment was “just like that”
- The applicant was not formally interviewed about his complaint after he submitted it
- There was no documentation for a meeting with one of the individuals who made these comments
- The employer representative met with the applicant 1.5 months after the employer was informed of his complaint
- One of the individuals who made these comments was transferred to another location, and received a promotion as part of the transfer process
Managers must understand what harassment is and take any complaint seriously
Training in harassment and discrimination is essential, but it is particularly important for managers and supervisors. They need to be keenly aware of what constitutes harassment – including instances when someone makes a single inappropriate comment – so that they will take complaints seriously from moment that they are received. Even a single inappropriate comment has the potential to be deeply hurtful and insulting.
Don’t Delay! Do document
People are busy, but harassment complaints must be a priority. Those who receive harassment complaints must respond as quickly as possible and document every meeting that occurs with individuals who were involved in the events outlined in the harassment complaint.
No rewards for harassment
Do not promote the person who committed the alleged act of harassment during or in the immediate aftermath of the investigation process. This can rightfully be interpreted as tacit approval for inappropriate conduct. If the allegation of harassment is proven, carefully consider whether this type of behaviour is disqualifying for a promotion.
Believing the complaint is not enough
A reasonable investigation means that even the complainant must be thoroughly questioned about the substance of their complaint. Accepting it as-is might feel like a good way to stamp out inappropriate conduct, however, this shortcut indicates that the investigation is not sufficiently thorough as it unduly limits the employer’s understanding of the details and context of the allegations.