A Short Guide to Conducting Workplace Harassment Investigations
Workplace harassment is a known hazard in the workplace. Like any other hazard according to occupational health and safety law, employers must be prepared to take action when it arises. This action includes effectively investigating complaints.
Policies and Programs for Workplace Harassment
In some jurisdictions, policies and programs are required by law. Where they are not, workplaces are advised to have them in place. Effective policies and programs decrease liability and can effectively deal with issues of harassment when they arise.
A Policy is the employer’s commitment to protect workers from the hazard of harassment. A Program is the actions the employer will implement to support the policy. Both should be in writing and available to all workers.
For further information, please see A Short Guide to a Workplace Harassment Policy and Program.
An effective Harassment Program includes a process for receiving and investigating complaints.
Introduction
In many jurisdictions, not only are employers required by law to investigate complaints of harassment, they are also required to act when they become aware of issues despite the absence of an individual complainant.
Even where the law does not require the employer to act, a competent investigation will:
- Minimize legal liability;
- Send a message to all workers that the employer takes harassment and discrimination seriously;
- Identify actions to prevent a recurrence.
Conducting a competent workplace harassment investigation requires specialized knowledge and skill. The investigator must be objective. Investigations can be done internally but sometimes are more appropriately accomplished by a neutral third-party.
The following is an outline of the investigation process and can be used as a helpful guide. However, it does not cover every aspect of investigation. Whole books have been written on that subject. Persons who undertake a workplace harassment investigation are advised to take additional training.
Investigating Workplace Harassment Complaints
Investigations can be organized into the following stages:
- Pre-investigation
- Investigation
- Report Writing
- Post-investigation
1. Pre-investigation
Considerations
Does the complaint or the issue meet the definition of harassment according to the law and/or internal policy?
Most jurisdictions define harassment as a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. For further information, please see A Short Guide to Understanding the Definition of Workplace Harassment.
Deciding whether the complaint or issue is harassment is not a matter of proof at this stage; after all the investigation has not yet begun. Nor should we make judgements based on the good (or bad) character of the person who complained (the complainant) or the person complained against (the respondent). We should ask, “If the complaint was proven, would it be a violation?” If the answer is yes, we proceed to gather that proof in an investigation.
If the answer is no, then some other course of action may be more appropriate. For example, where there was a technical dispute between two workers that became heated and there is no indication of a covered ground of discrimination operating (e.g. sexist, racist or homophobic slurs) or bullying. In this situation, a solution may be better achieved through a mediation rather than investigation.
Meeting with the Complainant
Upon receiving the complaint, a neutral person in authority should meet with the complainant and advise them of the process for the investigation. Tell the complainant that the workplace takes the matter seriously and wishes to protect all employees from the hazard of harassment. Determination regarding the merits of the complaint will only occur after any respondent(s) have an opportunity to reply, evidence is gathered (including witness statements) and the investigation concluded. The result will be shared with the parties.
Who should Investigate?
The investigator must be competent. The investigator should understand and be able to interpret applicable laws, internal policy, and terms of any collective agreement. They should also know the process for an effective investigation.
The person or person(s) selected to do the investigation should be objective. They should not be the alleged source of harassment and should not be under the direct control of that person.
In some cases, a competent and objective investigation can only be achieved by hiring an experienced third-party, for example where the workplace does not have the internal competency and/or an internal resource sufficiently removed from the situation to be considered objective.
Meeting with the Respondent
The respondent should be advised of the complaint as soon as it is practical. Like with the complainant, tell the respondent about the investigation process and remind them of policy. Determination regarding the merits of the complaint will only occur after the respondent has an opportunity to reply, evidence is gathered (including witness statements) and the investigation concluded. The result will be shared with the parties.
What happens to the parties (Complainant and Respondent) during the investigation?
In occupational health and safety law, harassment is a workplace hazard. Like any other hazard, employers must take all reasonable precautions necessary to protect workers. This can mean separating the parties. Care should be taken not to punish the complainant, so it is common that the respondent is moved. In some cases, the risk is great enough that the respondent should be put on paid leave pending the outcome of the investigation.
For example, a senior male worker who supervises younger female interns is accused of sexual touching in the workplace by two new hires. There is no alternate assignment available away from the incoming interns, so the respondent is placed on paid leave. This ensures that the complainants and other women in the workplace are protected from any further harassment.
Confidentiality
In some jurisdictions, occupational health and safety law requires that the matter remain confidential. Of course, for the purpose of the investigation, the parties have to be named to each other and sometimes to witnesses too.
Witness identities should not be revealed to the parties or to the employer except where required by law (e.g. in a grievance or other legal hearing).
The parties and witnesses are instructed to keep the matter confidential.
Reprisal for participation in a human rights or occupational health and safety investigation is contrary to the law.
Disclosure of information from the investigation should be confined to the parties and to those people legitimately responsible for acting on the investigation’s findings.
2. Investigation
Gathering the Evidence
The job of the investigator is to gather the evidence to establish the facts that will determine whether or not harassment occurred. Understanding the nature of evidence (direct, indirect, similar fact, hearsay) and how to weigh and interpret it is critical. For further information, please see A Short Guide to Understanding Evidence in Workplace Harassment Investigations.
The investigator will maintain a file by carefully recording when and how evidence is received.
In most cases, the investigator meets first with the complainant, conducts an interview and takes a statement. Questions should be prepared in advance based on the complaint. However, other questions will arise. For further information, please see A Short Guide to Conducting Interviews in Workplace Harassment Investigations.
It is an effective practice to reduce the complaint to written and numbered allegations. The original complaint may have been in writing (typically received electronically) but often will include extraneous information, including evidence and names of witnesses. Work with the complainant to edit the complaint. A final complaint will contain enough specifics and context to enable the respondent to have a fair opportunity to reply. The complainant should sign and date the complaint.
The complaint is provided to the respondent, who then has a reasonable period of time to respond in writing prior to meeting with the investigator.
Other evidence is gathered. In harassment complaints, this generally means more witness interviews.
It is often necessary to go back to one or both parties to get clarification or to provide an opportunity for rebuttal. For example, payroll records indicate that an alleged interaction between the parties could not have occurred on the specified date because the respondent was not scheduled to work. The complainant may explain that an error was made and provide sufficient context and details to indicate an alternate date, which might necessitate going back to the respondent.
The parties and witnesses have the right to be accompanied by a supporter or a representative during interviews. However, the role of the supporter or representative is limited. They do not speak on behalf of the interviewee. If requested, the interview can be adjourned so that the interviewee can receive advice before resuming.
The investigator maintains control of the investigation. Only the facts material to the allegation of harassment are investigated. The investigation is complete when the investigator decides that there is sufficient evidence on a balance of probabilities to establish the material facts and therefore conclude whether or not harassment took place.
3. Report Writing
Investigations must be objective, and reports must demonstrate this neutrality. The report should be in plain language, using declarative sentences and avoiding adjectives and other modifiers.
To maintain confidentiality, avoid the use of names. The parties can be identified by their positions and working relationship. If it is necessary for the narrative, the witness can be referred to as Witness 1, Witness 2, etc.
The investigator and their mandate should be explained, and the scope of the investigation outlined.
The complainant and respondent’s reply should be included in the report. They can be summarized if necessary. It is a good practice, as noted under the Investigation section above, to have a complaint with numbered allegations and a reply addressing each of them. It can help the narrative and avoid repetition when discussing the evidence.
Each of the material facts should be addressed in the report. The key evidence (or lack thereof) should be discussed for each. No opinions are offered, or conclusions reached in this section of the report.
The conclusion should discuss the law (Human Rights and/or Occupational Health and Safety) as it applies to the facts alleged as well as the workplace’s internal policy.
The key facts and evidence should be summarized leading to a conclusion, for example:
The respondent admitted he became angry and yelled at the complainant as set out in allegation numbers 1, 3 and 5. While he denied using offensive and sexist language, witnesses confirmed that his language included negative comments to the effect that women were not capable of the required hard labour and should stay at home to care for their children. The witnesses confirmed that the complainant and others told the respondent that these comments were inappropriate, but it continued. The evidence therefore indicates that there was repeated vexatious comments related to sex and family status that were known to be unwelcome. Further, the yelling behaviour was a form of bullying. In conclusion, the evidence indicates that the complainant was harassed contrary to Human Rights Law, Occupational Health and Safety Law and internal policy.
4. Post-investigation
It is not necessarily the role of the investigator to do post-investigation work. Often, it is best to separate this role but get recommendations from the investigator.
The results of the investigation must be shared with parties and in some jurisdictions must be in writing. Before taking any action, the parties must have a reasonable opportunity to respond to the report. The employer should carefully consider the responses before deciding next steps.
If there was a finding of harassment, the employer should take corrective action. In some jurisdictions, it is required. The goal of the action should be to minimize the risk of any further worker exposure to the hazard of workplace harassment.
The action can include updates to internal harassment policy and program, training, re-assignments (again avoiding punishing or seeming to punish the complainant) and discipline of the respondent.