15 May

 

Harassment Investigation: Keeping it Fair

 

By Steven C. Gaon, C.Med

Is an accusation of harassment equivalent to culpability? This article looks at the significant increase in harassment complaints coinciding with the Me Too Movement, as many ADR professionals take on the role of harassment investigators. The author examines the need to encourage victims of sexual and other forms of harassment to come forward against the need for procedural fairness.

Coinciding with accusations of sexual harassment and misconduct against movie producer Harvey Weinstein, the MeToo Movement (also known as “#MeToo”) began to go viral on social media in 2016-2017. The movement is a widespread effort to expose incidents of sexual assault and harassment, particularly in the workplace, and to encourage victims to come forward with complaints against alleged perpetrators.

With harassment complaints on the rise, the movement has shone an important light on the issue, as well as the challenges faced by ADR professionals tasked with investigating harassment.

In fact, workplace harassment policies have been around for decades. The Treasury Board of Canada has had a comprehensive harassment policy since 2001 (revamped in 2012), applying to most federal departments and agencies. Similar policies can now be found within most large companies and NGOs.  Despite these policies, however, many occurrences of workplace harassment, particularly sexual harassment, have gone unchecked for years, largely because victims have been too fearful or embarrassed to submit complaints. The Me Too Movement has, to some extent, liberated people from these fears.

But should the mere accusation of harassment mean that every alleged perpetrator must be suspended or fired? Are all victims to be believed?

The short answer is “no”. Each case turns on its own facts. One case I investigated involved alleged sexual harassment by a federally appointed (male) official, in which I found that egregious incidents of sexual harassment had occurred in relation to a female colleague. The complainant had to be persuaded by management to come forward. She justifiably feared repercussions due to the respondent’s position of power and influence. It was a classic “he-said/she-said”. I found the complainant’s evidence entirely credible and the respondent’s version of events utterly implausible.

Another case involved allegations of sexual harassment by a young woman against an older married male colleague, in which she confided her suicidal thoughts to him. She said they had a friendly relationship but that the respondent then began sending her progressively intimate text messages and she finally told him to stop. She claimed he then reported her mental condition to management, resulting in her being suspended from work pending medical clearance. Textbook sexual harassment and retaliatory behaviour, right? Wrong; it turned out there was nothing sexual or intimate in their communications (aside from some mildly flirtatious exchanges on both sides) and it was not the respondent but the complainant’s supervisor who reported the mental issue after the complainant told her about it. The complainant erroneously believed the respondent had betrayed her. A key piece of evidence was the text exchange, which also proved that the complainant never asked the respondent to stop communicating with her. Our investigative report exonerated the respondent. The lesson here is that investigations must live or die on a careful review of the evidence. Accusation is not equivalent to culpability.

The concept of fairness must not be taken lightly. This involves ensuring a fair process from beginning to end.  A staple imbedded into procedural fairness is the audi alteram partem rule, i.e., the right to be heard or present evidence. The rule applies to both parties but it is more apparent when the rule is breached in relation to a respondent, who may have been judged before being able to present evidence. The allegations and facts in support of the allegations should be disclosed to a respondent, with a reasonable opportunity to respond. Failing to provide basic safeguards of procedural fairness in a harassment investigation will result in a process that looks a lot more like persecution than harassment prevention.

Equally important in a procedurally fair process is a proper analysis of the harassment definition. Some complainants, and even some investigators, believe that if a complainant subjectively feels they have been harassed, then they have been harassed. I often recoil at the expression “my truth” because it implies moral relativism. The phrase “her truth” or “his truth” is commonly heard in the Me Too Movement. An investigator’s job is to determine, on a balance of probabilities, what occurred, i.e., the objective truth. A proper analysis of the definition of harassment requires a subjective-objective test. The Treasury Board definition (which contains a typical description) defines harassment as “improper conduct . . . that is directed at and offensive to another individual. . . that the individual knew or ought reasonably to have known would cause offence or harm.” So, e.g., if two co-workers regularly swear at each other in a good-humoured way, without either of them taking offence, then the first part of the test – whether the complainant subjectively felt offended – has not been met. Once it is established that a complainant was offended by a respondent’s conduct, there must then be an analysis of whether the respondent knew or ought reasonably to have known that their conduct would cause offence or harm. Thus, the “reasonable person” or objective test must then be applied.

In summary, it is imperative that victims of sexual and other forms of harassment bring their complaints forward. At the same time, as the number of harassment complaints increases, investigators must not lose sight of their roles as third-party neutral searchers for the truth and standard-bearers of procedural fairness.


Steven Gaon is an Ottawa-based lawyer and Chartered Mediator. His ADR practice consists of mediation, arbitration and investigating misconduct, including investigations into harassment, ethics, conflicts of interest and security matters.

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