Sep 25, 2011

Investigating Sexual Harassment Complaints: Do you have a policy?

We provide employment law advice to small employers in Ontario. When I meet with a small employer for the first time we discuss the organization’s current employment policies and practices. One question we ask is: Do you have a sexual harassment policy?

Although not required by Ontario law, we recommend that most employers implement a sexual harassment policy that includes a complaint procedure.

We make this recommendation for a number of reasons.

One reason is to minimize the risk that the employer will be found to have failed to take reasonable steps to address a sexual harassment complaint.

In at least two cases, the Ontario Human Rights Tribunal (the “Tribunal”) has ordered an employer to pay $ 7500 because it failed to reasonably investigate a sexual harassment complaint.

In one of these cases, the Tribunal made this order even though it concluded that sexual harassment did not take place.

Here are five questions the Tribunal will consider when determining whether an investigation is reasonable:

1. Was there a suitable anti-discrimination/harassment policy?

2. Was there a proper complaint mechanism in place?

3. Was adequate training given to management and employees?

4. Once an internal complaint was made, did the employer treat it seriously?

5. Did the employer communicate its findings and actions to the complainant?

The Tribunal has stated that an employer need not provide an affirmative answer in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm.  The Tribunal will consider the answer to each question individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

If you have any questions about sexual harassment policies, please call us at 417 977-9894 or email us at [email protected]


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