to address harassment, bullying and discrimination
with Stephen Hammond
Tip #14 — UNDERSTAND RESPONSIBILITY AND LIABILITY OF HARASSMENT
The Supreme Court of Canada has made it very clear that management is responsible for what goes on in their workplace. From what I've seen, human rights commissions and tribunals take a very liberal definition of management. They often don't care if a supervisor is inside or outside a union, or whether she has hiring and firing capabilities. They just want to see someone who supervises employees to deal with harassment.
As for unions, in September of 1992, the Supreme Court of Canada made a ruling against both the Canadian Union of Public Employees and the Central Okanagan School Board in British Columbia, related to a human rights complaint. The case, which involved the need to accommodate a Seventh-Day Adventist employee, ended up being the first time the top court stated that a union had a "shared" duty with an employer to deal with a human rights issue. Since then, unions realized they had more than a moral obligation to work with employers on issues of human rights in the workplace. Even though they are not ultimately responsible for dealing with harassment, they have a legal duty to work with management.
Take, for example, an employee wanting an internal transfer while her complaint of harassment against her boss is completed. There may be an opening in another part of the business, but because of her lack of seniority, she is ineligible for the job placement. In such circumstances, I think the union has to consider this temporary request to support the harassment process, even though it does not follow collective agreement provisions. Many unions were working with management on human rights issues long before the Supreme Court ruling.
Then there's the issue of the burden of proof. As in all human rights issues, there is a bit of a reverse onus. If a complainant makes a prima facie case of harassment, then the onus of proof reverts to the employer who must show that on a balance of probabilities, the harassment did not occur. Prima facie means "at first sight" or "on the face of it."
In other words, if I turn up at a human rights commission with a story of being harassed by my boss, and I present to them a poem from my boss insinuating he's in love with me, my boss will have to show that the harassment wasn't going on, because that's very compelling evidence. If he then shows up and produces a stack of love letters from me to him and explains that it's me who is infatuated with him, and that he sent only one poem in response, meant entirely tongue in cheek, he has a chance of proving this was not harassment. (He'd also prove poor judgment and a lack of careful listening at the last company harassment training session.)
1) Don't pass the buck - as it may stop at your desk. If you supervise people and you observe an incident with a simple solution, deal with the solution on your own. Who needs an investigation when someone uses a racist slur? Say "knock it off" and get back to work. Since most people don't do that, if you speak up and deal with it immediately, you're way ahead of the game.
2) Seek advice when you need it - as you're not alone. Your workplace might have a human resources department, or just someone with more knowledge about workplace human rights issues. Talk to any person you think has more knowledge on this and don't look at it as a sign of weakness. It's a strength.
3) Follow up if someone else is handling it - to make sure nothing falls between the cracks. Let's say an incident requires your boss to handle it. Don't assume she has. Discuss a follow up date and then stick to it. If it's not done, consider what other action you have to take. But don't let it fall between the cracks.