Module 7: Understanding Harassment
Responsibility for blunting racist, sexist, homophobic, ableist thoughts and actions is shared between individuals, organizations, and society. Resolving problems of workplace harassment will require diplomacy, patience, and fortitude.
The aim of these modules is to gain knowledge, awareness and skills that will enable learners to take effective actions that combat discrimination and create more inclusive and safe environments, so the experience of learning is a rich one with opportunities for you bring your full creative self too and be meaningfully engaged. It is acknowledged that the power dynamics between the student who may be experiencing or witnessing discrimination and the perpetrators who may be in a position of authority or status (this can also be another peer) can make challenging or speaking up difficult and sometimes scary. There are different factors that weigh into a person’s decision to act and are not always clear-cut reasons nor are they the same for everyone. Whatever the reason, the decision you make should be one that you are comfortable with.
Being informed about the options available to you can help you to determine how you wish to respond and the steps that can be taken, the supports available and the possible outcomes. In some circumstances, the decision to address concerns and incidents does not rest with only you. Once a disclosure is made, processes to respond to situations of discrimination or harassment are triggered such as an investigation or duty to report and respond, as impacts can go beyond individuals directly involved impacting the large group or organization.
Deciding how to respond does not have to be a decision you make on your own and without support. You are encouraged to reach out to program faculty and staff within your institution. There may also be a variety of campus services from which you can also seek advice, will assist you with getting connected to the proper supports and bringing a complaint forward. Remember you do not have to handle things on your own.
When joining an organization, or newly encountering workplace harassment at your organization, familiarize yourself with the harassment policies and procedures. As mentioned above, by law, all organizations are required to develop and maintain workplace harassment policies and procedures. If information is not available through the company’s website or intranet, then seek out the information from the person responsible for occupational health and safety-related issues. Organizations with five or fewer employees are not required to have a joint health and safety committee or a health and safety representative unless a designated substance regulation applies to the workplace. Organizations with six to 19 workers are required to have a health and safety representative, and organizations with 20 or more workers must have a joint health and safety committee (“Guide for Health and Safety Committees and Representatives“).
If you are a victim of harassment or a bystander, thoroughly document the incident(s), including a detailed description of events, the dates and times of incidents, where it occurred, the names of persons who witnessed these events, names of persons you confided in immediately after the event (if applicable) (“Tips for Targets of Workplace Bullying“).
Deciding How to Respond to Harassment
If you are bullied, above all, Rayner et al. advise avoiding actions that will escalate the conflict (i.e., by using retribution strategies). “It is therefore crucial not to hit back by, for example, pointing out their weaknesses, starting rumours about them, or in any other way adding fuel to the bully’s fire” (Rayner et al. 147). That said, you must consider what you want. Some may want the bullying to stop and to keep working; others may desire an admission of guilt from the offender. Each of these entails various costs, both immediate and potentially long-term. Even doing nothing and accepting the maltreatment (i.e., acquiescing) is a choice and entails a cost such as increased stress that may affect health and relationships (Rayner et al. 148).
You may exercise your voice and confront the bully directly. This may be more productive if the bullying recently started and has not become a pattern of behaviour in your relationship. Stating the effect of the behaviours and its unacceptability will, in some cases, “be enough to cause the perpetrator to change” (Rayner et al. 148). Alternatively, you may choose to disclose harassment to a co-worker, supervisor/manager, and/or human resources personnel, depending on the source of harassment. By engaging with human resources personnel, you are effectively asking them to enforce a duty of care, although reports suggest that victims do not get the feedback they expect (Rayner et al. 151). You may consider discussing your situation with a member of the union if you work in a unionized environment. You may also confide in a colleague, friend or family member about the situation and whether to file a formal harassment complaint. Some might advise you to think twice – that it might hurt your future prospects or reputation. Some may be wholly supportive. Others may imply, if not openly say, that you will be labelled a troublemaker, overly sensitive, or a whiner if you proceed to file a complaint. They may suggest that the incident(s) may not be as harmful in hindsight, and do not warrant your reaction by saying, for example, “That was just a joke. You can’t be so serious and take offence to everything…Just forget about it and it will pass.” Also, be mindful that a complaint will require you to convey events that may be triggering with persons with whom you have no previous professional or personal relations (Ahmed 521). At every turn in your complaint journey, there may be barriers. This is not intended to discourage and dissuade, but simply a reminder that such situations are inflected by power, and persons may question the credibility of a complaint and, by extension, the person making it. Therefore, filing a complaint requires fortitude (Ahmed 522).
You may also remove yourself from the environment, either by quitting and finding employment elsewhere, moving internally within an organization, or avoiding the offender. This decision will depend on a number of factors, including the scarcity/availability of jobs internal or external to the organization, your professional networks, financial situation, and the likelihood of “institutional harassment” (Ahmed 522). For example, Google employees who reported harassment faced retaliation, which provides a powerful signal to those who might be considering disclosing misconduct (Ghaffary).
Prepare to Submit a Formal Complaint
For those who decide to remain and to submit a formal complaint. It is important to be proactive and prepare for a formal complaints process. For example, you might document the problem, including evidence of:
- the pattern and duration of behavio[u]r;
- the effects of the behaviour on your ability to perform your job effectively;
- the impact of the behaviour on your team, unit, or department;
- any actions that have been taken to address the problem, and the results (“Tips for Targets of Workplace Bullying“).
Here are some strategies that may be used at the meeting to present your complaint:
- remain confident of your tone and body language;
- share only factual details of the incident and protect your credibility;
- discuss your positive relationships with peers and managers;
- summarize your performance record;
- provide names of other employees who have been bullied (with their consent).
- acknowledge the possibility that the bully might not be aware of the effects of his/her/their actions;
- ask if there are further questions or issues that require further clarification.
- inquire about the next steps in the process and actions that may be taken (“Tips for Targets of Workplace Bullying“).
Decide When to Report
There is no time limit for a current employee to notify an employer about an incident of harassment. If the alleged perpetrator is no longer an employee, the organization does not have an obligation to investigate. However, former employees have three months after the end of their employment to file a complaint and may apply for a three-month extension (“Work Place Harassment and Violence Prevention Regulations“). First, you must notify your supervisor or the designated health and safety representative responsible for the harassment and violence prevention policy. Then you must try to resolve the complaint with your supervisor, or the designated person.
Generally, there are three options to resolve a complaint – a negotiated resolution, conciliation, and a formal investigation. These options fall on a spectrum of conflict resolution processes that move from informal to more formal ways of resolving conflict. For example, conflict mediation is one such option that could be an effective option to consider, allowing individuals involved greater ability to inform the outcomes. The more formal processes will mean decisions and outcomes will be determined by a third party like an adjudicator.
When deciding how to proceed, always find out about all the options available to you to enable you to make an informed decision that is best for you. In some cases, a report of an incident can trigger an investigation even without your consent or approval.
Negotiation, Conciliation and Investigation
A negotiated resolution involves communication between the parties (employer, alleged victim, alleged perpetrator) about the alleged incident, and possible actions to resolve the issue and prevent further occurrences. For example, an employer might convene meetings with the parties separately to understand the nature of the conflict and might facilitate a settlement. If the alleged perpetrator assumes responsibility for the behaviour, the employer might recommend an apology and forms of restorative justice. The employer might recommend a conflict resolution coach to improve the interpersonal communication skills of both or one of the parties.
Conciliation requires that both the alleged victim and alleged perpetrator jointly participate in conciliation and agree on a conciliator to assist in facilitating a resolution. A conciliator can be a professional mediator, a supervisor, an Elder, a faith-based figure, a colleague, etc. Conciliation amounts to a mediated discussion or series of discussions.
An investigation is the most complicated of the three options (“Work Place Harassment and Violence Prevention (HVP)“). If you (the principal party) choose to proceed with a formal investigation, you will be required to provide supporting documentation about the health impacts, such as a sworn statutory declaration, a police report, a note from a health practitioner, or counsellor, or a restraining order. At any point in the investigation process, the parties may discuss a negotiated resolution or conciliation. You and the alleged perpetrator (the responding party) must agree on an investigator. The investigator should be a neutral person, with no conflicts of interest in the case, or even a third party depending on the severity of the charges to ensure the findings are not biased. If the case is not resolved and is taken up by an external tribunal, such as the Ontario Human Rights Tribunal, the quality of the investigation process will come under scrutiny. This would include an assessment of the investigation’s fairness, impartiality, comprehensiveness, and compliance with procedures (“Work Place Harassment and Violence Prevention (HVP)“).
Once the investigation is complete, the employer must notify the parties with a copy of the written report, and determine whether the findings substantiate the claims of harassment. The employer cannot take reprisal measures against you based on Section 50 of the Act, which prohibits any retaliatory action against a complainant. Such actions include terminating or threatening to dismiss a worker, disciplining, or suspending, or threatening to discipline or suspend a worker, imposing any penalty on a worker, or intimidating or coercing a worker. If a case against an employer for reprisal is brought to court, the employer must show that they did not terminate/penalize the worker due to the harassment claim. Moreover, “[e]ven if the employer has what would otherwise be legitimate reasons for termination, if one factor in the decision is the applicant having exercised his rights under the OHSA, the termination will be found to be a violation of section 50 of the OHSA” (Barton v. Commissionaires (Great Lakes), 2011 CanLII 18985 (ON LRB) at para. 20 qtd. in McCarthy Tetraut 2018).
While an investigation is more exhaustive than either a negotiated resolution or conciliation, it is more time-consuming, and may likely require you to disclose personal information, such as medical records. For these reasons, an investigation may further aggravate stress levels, at least during the investigative stage.
If the matter is not resolved in any of these three ways and in a satisfactory manner, you have a number of options:
- If you believe you are a victim of alleged workplace harassment, you may contact the Ministry of Labour if the employer fails to conduct an investigation of the complaints that is appropriate in the circumstances.
- If you have been fired and believe that the action was a reprisal for filing a harassment complaint, you can file a complaint with the Ontario Labour Relations Board related to employee rights under the OHSA.
- You may file a formal complaint with the Ontario Human Rights Commission within one year of the alleged incident.