A number of years ago the media was full of stories about British Columbia's Simon Fraser University and its firing of swim coach Liam Donnelly amidst allegations of sexual harassment made by student Rachel Marsden. Yet after all was said and done, Liam Donnelly was rehired, Rachel Marsden was given $12,000 as a settlement for counselling and other expenses, John Stubbs was no longer the university’s president (although he was given a severance of almost $300,000), the university paid Donnelly's $60,000 legal bill, and the university conducted a formal review of previous harassment and discrimination cases. Throughout this period, the university felt the impact on its fundraising. A Globe and Mail headline noted, "SFU's Costs in Sex Case Exceed $350,000," but when I do the math and consider all the time and resources involved in cleaning up this mess, I reckon that figure is extremely conservative.
The university also went to great expense to create a new policy and procedure for dealing with future harassment investigations. According to the university's annual report the year after this incident, this is a simplified explanation of the new procedure at SFU's Harassment Resolution Office:
Under the revised policy, formal harassment allegations are referred to a board chair, who can authorize or refuse to authorize an investigation. The seven-person board provides advice to a vice president. If an investigation is required, the board chair appoints an experienced investigator with expertise in administrative law, who may order a comprehensive fact-finding search, at which point the report goes to the chair, who forwards it to a senior university official – and so on and so on.
What do you think of that? Can you visualize the fast-inflating bills? After the dust settled at SFU, I looked into their previous policy and procedures, compared them with the new process, and concluded that SFU used to have a really great automatic Buick…but drove it like an old rented standard Volkswagen Beetle with John Belushi's character from Animal House at the wheel. Now I think they have a top-of-the-line Jaguar with a full-time chauffeur.
You don't need a top-of-the-line anything. Today, most workplaces have policies covering all forms of harassment, discrimination and bullying. While most workplaces are required, by law, to have a policy, it’s rarely what’s in the policy that counts. It usually comes down to the way it’s administered. Keep in mind that not only did SFU have a policy; it had paid staff dedicated solely to handling harassment complaints. Yet look at the trouble the institution got into! Most workplaces don’t have those kinds of resources and most don't need it if supervisors and employees understand the importance of a harassment-free workplace – and act on it with common sense. SFU is living proof that having a policy doesn’t always save an organization, especially where it is not applied properly. I’m sure SFU has learned a great deal from that headline-grabbing incident years ago, but it cost them a lot to learn that lesson.
When it comes to harassment, discrimination, bullying and any weird workplace behaviour, the supervisors’ role is to ensure a good, basic understanding of workplace procedures and a focused application of these. Mistakes will happen and some decisions will be reversed, but if staff are taught the basics and told to ask for advice when unsure, most workplaces will run more smoothly.
When supervisors do not enforce policies according to the law, the organization or individuals within it may be legally liable. In Canada, the award of general damages isn't very large (not to sneeze at $2,000 to $10,000) but other costs tend to escalate: legal fees, payment of costs for the opposing side, out-of-pocket expenses, and lost wages if applicable. Meanwhile, the time required to deal with a formal case costs a lot in lost productivity, stress and anxiety – all of which coexist with your need to carry on business as usual, since your work doesn’t stop for a legal proceeding.
More and more, employers will be held liable for what happens in their workplace. In the eyes of the law, either they knew what was going on or they should have known what was going on, and in both cases, that means they take responsibility and pay the awards. Personal liability seems to flow to those actively involved in the process. In other words, if a supervisor was involved in discrimination or in covering it up when he or she found out about the discrimination, that’s the person most likely to be found personally liable. The complainant may go after that supervisor, not just the corporation or department, for the award.
In 1992, the Supreme Court of Canada formally brought unions into the human rights legal liability equation with a decision involving an employer and union judged to have not sufficiently accommodated a religious employee's scheduling needs. It probably came as a surprise to members of the Canadian Union of Public Employees (CUPE) to find their union dues going to a hefty legal bill, since CUPE has been at the forefront of human rights issues for decades. However, the notion that all parties in the employment equation may find themselves liable if they don't actively take part in resolving human rights issues was an important lesson to learn.
Because money, or the threat of losing it, is so important in our society, the issue of liability is a good reason to ensure supervisors and managers know as much as possible regarding harassment, discrimination and bullying. No workplace supervisor has to have a law degree to understand the basics of these issues, but on a regular basis each workplace should cover these issues of harassment, discrimination and bullying in the same way you would for health and safety issues, profit projections or cost containments. All of these will be affected if an issue becomes a formal complaint in your workplace.
Discussions about appropriate workplace behaviours don't have to be lectures. I find the best approach is to allow colleagues to bring up real examples and discuss them. It moves a talk from the clinical to the real. For example, allow people to be open and honest about certain words or actions that may be a problem to them. If your workplace is in anyway caring, such discussions will go much further than stern prohibitions of, say, sexist, racist or homophobic language. Such dialogues must, I repeat must, be done in a non-judgemental format where people aren't blamed. If discussions raise an "I didn't know that" response, you've got the right mix.
Harassment and discrimination decisions in particular sometimes fly in the face of what we think of as equality. Allow supervisors to be frustrated with concepts and results, as long as it leads to understanding. They don't have to agree with it, but they have to adhere to it. If your management team knows that the thought police aren't going to arrest their minds, they'll feel better about having to change only their behaviours, not their minds.
When you think about harassment and bullying policies, make sure supervisors and managers know they must be consistent in order to be firm about possible violations. When a dilemma arises, encourage supervisors to think, "What if I allowed this to happen with a different group?" For example, don't allow an employee to constantly degrade Christians when you know you'd take a strong stand on similar degradation against Muslims or Jews.
When a supervisor has made a big mistake – perhaps allowed a horrible racist joke to be told without responding – encourage him or her to admit and correct the error. It could be as easy as offering an apology. Victims of workplace harassment discrimination or bullying usually want a reasonable remedy, not money. Human rights law is by definition "remedial" legislation, so it's a lot easier to correct a mistake than people think. Human rights and other cases typically start because someone in management didn't get involved when they should have.. Allow for all levels of supervisors to admit mistakes to their bosses and their employees, without fear.
So a harassment and similar policies are a good start, but there’s so much more.
