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Harassment 101 for start ups

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Workplace harassment is a business-critical issue in all places of work and should be taken extremely seriously, particularly in the emerging and high growth companies space. Employers have an obligation to provide a safe workplace and have specific responsibilities under applicable legislation including developing and implementing policies, training and investigating workplace harassment. In addition to the detrimental effect on the well-being of employees, the potential costs and risks associated with workplace harassment include monetary damages, reputational risks, low employee morale, legal costs and more.

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Harassment 101 for start ups

  1. 1. Osler, Hoskin & Harcourt LLP Work Place Harassment 101 for Start-Ups April 2018 Steven Dickie, sdickie@osler.com Allison Di Cesare, adicesare@osler.com
  2. 2. 2 WHY ARE WE HERE? COSTS OF WORKPLACE HARASSMENT:  Penalties/damages awards against the Company  Employees may be personally liable  Public image – potential PR nightmare  Impact on fundraising  Employee morale, turnover, absenteeism, etc.  Legal costs  Etc. WORK PLACE HARASSMENT 101 FOR START-UPS
  3. 3. 3 OBJECTIVES: Basics of the legal framework How and when to conduct a harassment investigation Risk management techniques and best practices Case studies WORK PLACE HARASSMENT 101 FOR START-UPS
  4. 4. 4 OVERLAPPING LEGAL REGIMES  Human rights legislation  Narrower: workplace free from harassment and discrimination based on “protected grounds”  Occupational health and safety legislation  Expansive, doesn’t have to be linked to a protected ground  Harassment is broadly defined  Recently amended to add to employer obligations WORK PLACE HARASSMENT 101 FOR START-UPS
  5. 5. 5 SCOPE: THE WHO AND THE WHERE  Protecting workers at the workplace  Workers: employees, contractors, interns/students  Workplace:  Not just the physical office  Think: conferences, social media, after work drinks  Essentially, anything connected to work  Extends to protecting workers from harassment by third parties WORK PLACE HARASSMENT 101 FOR START-UPS
  6. 6. 6 WHAT IS WORKPLACE HARASSMENT?  “Engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”  Includes, but is not limited to, sexual harassment  Not about intention - it’s about effect and impact (reasonable person standard)  Can be one act or comment, or a pattern  Context is important WORK PLACE HARASSMENT 101 FOR START-UPS
  7. 7. 7 EXAMPLES OF WORKPLACE HARASSMENT • Insulting, intimidating, demeaning, annoying, embarrassing or otherwise offensive behaviour • Inappropriate or unwelcome focus or comments on a person’s physical characteristics or appearance • Bullying or cyberbullying • Isolation and shunning, gossip, rumours, negative blogging, insults, name-calling • Slamming doors, throwing objects and physical contact WORK PLACE HARASSMENT 101 FOR START-UPS
  8. 8. 8 NOT HARASSMENT: Reasonable action taken by the Company or a manager relating to the management and direction of workers (e.g. coaching, performance reviews, discussion of performance expectations, managing absenteeism) WORK PLACE HARASSMENT 101 FOR START-UPS
  9. 9. 9 WHAT IS WORKPLACE SEXUAL HARASSMENT? “Making a sexual solicitation or advance where the person knows or ought reasonably to know that the solicitation or advance is unwelcome” A subset of workplace harassment WORK PLACE HARASSMENT 101 FOR START-UPS
  10. 10. 10 EXAMPLES OF SEXUAL HARASSMENT ▪ Unwelcome sexual advances, requests for sexual favours ▪ Other verbal or physical conduct of a sexual nature including sexual jokes, graphic spoken commentary about a person’s body, derogatory or degrading remarks, leering, whistling, unwanted touching, massaging, hugging, kissing, tickling, pinching, patting ▪ Sexual assault ▪ Enquiries or comments about a person’s sex life ▪ Displaying sexually offensive material in the workplace or inviting other employees to view such material WORK PLACE HARASSMENT 101 FOR START-UPS
  11. 11. 11 KEY OBLIGATIONS  Prepare a policy  Specific legislative requirements for what goes in  Follow the policy  Train staff  Investigate incidents and complaints of workplace harassment  No retaliation/reprisal WORK PLACE HARASSMENT 101 FOR START-UPS
  12. 12. 12 WHEN TO INVESTIGATE  Duty to investigate incidents and complaints of workplace harassment  Supervisor/manager knowledge = Company knowledge  Investigation must be “appropriate in the circumstances”  Failing to properly investigate is an independent violation of the legislation When in doubt, investigate! WORK PLACE HARASSMENT 101 FOR START-UPS
  13. 13. 13 INVESTIGATION STEPS  Receive complaint/document incident  Determine the investigator  Informed and impartial  Internal or external?  Develop investigation plan  Interview logistics – people in the room, order of meetings, location  Identify issues  Review relevant policies/procedures  Develop the questions to be asked WORK PLACE HARASSMENT 101 FOR START-UPS
  14. 14. 14 INVESTIGATION STEPS (CONT’D)  Workplace harassment investigations must be “appropriate in the circumstances”  Confidentiality  Thoroughness – interview everyone involved (including witnesses)  Respondent opportunity to respond  Collect and review relevant documents  Take notes and statements  Prepare a written report  Follow up with complainant and respondent WORK PLACE HARASSMENT 101 FOR START-UPS
  15. 15. 15 CONCLUDING THE INVESTIGATION  Analyze/evaluate the evidence  Relevance  Credibility  Make conclusions – “balance of probabilities”  Is it more likely than not that the alleged harassment took place?  Talk to the decision-maker  Inform the complainant and respondent in writing of the results of the investigation and any corrective action that has/will be taken WORK PLACE HARASSMENT 101 FOR START-UPS
  16. 16. 16 ADDITIONAL INVESTIGATION BEST PRACTICES  Be timely – memories aren’t reliable  But don’t rush!  Questions  Start general, move to specific  Neutral phrasing  Poker face  Ask interviewee to clarify/elaborate where necessary  Document, document, document  Ensure the complainant is not exposed to continuing harassment during the investigation  Consider whether temporary measures are needed pending investigation WORK PLACE HARASSMENT 101 FOR START-UPS
  17. 17. 17 CASE STUDIES : DOYLE v. ZOCHEM INC. • Plaintiff complained of sexual harassment • Employer ignored complaint • Employer conducted “cursory” investigation ◦ Did not interview plaintiff ◦ Did not allow plaintiff an opportunity to respond • Plaintiff terminated without cause WORK PLACE HARASSMENT 101 FOR START-UPS
  18. 18. 18 CASE STUDIES : DOYLE v. ZOCHEM INC. (CONT’D) • Employer appeal dismissed by Court of Appeal • Wrongful dismissal damages equal to 10-month notice period • $60,000 moral damages award ◦ Inadequate response to plaintiff’s complaint ◦ The investigation was self-serving and unfair • $25,000 human rights award ◦ The defendant’s failure to properly investigate the plaintiff’s complaint breached the Human Rights Code • Moral damages and human rights damages for the same facts does not constitute double recovery WORK PLACE HARASSMENT 101 FOR START-UPS
  20. 20. 20 TIPS ON PREVENTING CLAIMS  Open door policy: encourage employees to come to you with concerns.  Lead by example: express disapproval of inappropriate conduct and demonstrate that harassment will not be tolerated.  Understand and abide by your legal obligations  Take complaints seriously: don’t ignore them or make judgment calls before you’ve looked into them  Make objective, consistent employment decisions  Don’t wait for things to get worse  When in doubt, call the lawyers WORK PLACE HARASSMENT 101 FOR START-UPS
  21. 21. 21 WORK PLACE HARASSMENT 101 FOR START-UPS Allison Di Cesare Associate, Employment & Labour CONTACT INFORMATION adicesare@osler.com tel: 416.862.6725 Steven Dickie Associate, Employment & Labour CONTACT INFORMATION sdickie@osler.com tel: 416.862.4275