Inadequate investigation of employees’ discrimination complaints can expose employers to human rights damages. This is so even when they do most things right. In a recent case, after a nine day hearing the Human Rights Tribunal of Ontario ruled that while the employer did respond appropriately to some complaints of harassment, its failure to properly investigate all the allegations was a violation of the Ontario Human Rights Code. The employer was ordered to revise its harassment policy, to engage an expert to conduct human rights training and to pay damages of $5,000.
The employee repeatedly brought forward complaints of harassment. He first complained to the director of human resources that Co-Worker A was yelling and swearing at him when he attempted to convey instructions from the executive chef. But Co-Worker A complained that the employee was making derogatory remarks about other employees’ religions, backgrounds and sexual orientation. He alleged the employee said, “why are you talking to that Hindu?” and “why are you talking to him, he’s Jewish?”
An investigation was completed by the Human Resources Department. They concluded that both the employee and Co-Worker A had acted inappropriately. The employee was suspended for 5 days.
Prior to serving his suspension, the employee complained that Co-Worker B made offensive comments that he was “gay”, “a pedophile” and about his Islamic religion. The employee refused to cooperate with the Human Resources investigation. The employer then stated it was unable to substantiate his claims.
A couple of months later, the employee complained to his boss that there was graffiti in the staff washroom containing offensive sexual innuendo about him. The employee tried to remove the graffiti only to have it reappear in larger letters. The employer removed the graffiti a few months later.
The employer denied that it had discriminated against the employee. It said that it had conducted all investigations fairly and reasonably, and that it took steps to remove the graffiti once it was brought to its attention.
While the employer had partial success in defending its handling of these matters, the Tribunal still ruled (PDF), that it failed to properly investigate the employee’s complaints about Co-Worker B. The Human Resources director improperly found the allegations were unsubstantiated without questioning Co-Worker B, despite strong indications from other co-workers that there existed an environment where inappropriate comments were regularly made amongst employees.
The Tribunal also found that the employer did not take sufficient steps to remove the graffiti. Nor did it take preventative steps by posting a notice of the consequences of such conduct.
The Tribunal awarded the employee $5,000 for injury to his dignity, feelings and self-respect. The Tribunal also ordered that the employer retain an expert to provide human rights training and to revise its harassment policy.
Lessons for Employers
While investigating repeated complaints involving co-workers can be time intensive and complex, this case reminds us all of the importance of conducting proper investigations. Employers should:
- confirm employees are aware of existing policies regarding harassment and discrimination ;
- ensure that their complaints procedure is appropriate,
- ensure employees are trained on harassment, discrimination and respect in the workplace;
- ensure that an appropriate, neutral investigator is chosen;
- take each complaint seriously, respond promptly and investigate each of the allegations made;
- ensure all the facts are evaluated in coming to a reasonable resolution in the circumstances; and
- ensure the complainant is informed of the outcome of the investigation.