One day #MeToo is going to impact your business.
The #MeToo movement gathered women together in an unprecedented way, creating a community of support for victims of sexual harassment. It has removed the stigma of being a victim and enabled women (and some men) to openly accuse the person who did them wrong.
Ontario labour law, specifically Bill 132 and the Ontario Occupational Health and Safety Act, have put in place protections against discrimination and harassment in the workplace that seemed impossible just a decade ago. Sexual harassment isn’t just about inappropriate touching or risqué jokes any more. It now includes making offensive remarks about sexual orientation, gender identity and gender expression. This means that teasing someone who is going through a gender transition may constitute sexual harassment. As an employer you must protect your employees from harassment.
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So, what does a business owner or manager do when an employee says they have been sexually harassed? As the employer, you have to respond, but small businesses may not have the in-house expertise required for the job. If the employee reports the issue to the Ministry of Labour, the ministry can mandate the employer to engage the services of an “external” investigator to conduct an investigation “appropriate to the circumstances.” And no, the ministry does not define what that phrase means nor give any indication of how its inspectors would assess the quality of your investigation.
There is a lot on the line. Your employees’ well-being is at stake and they are watching carefully to see how you respond. Investigations are disruptive and make employees nervous. A poorly-conducted investigation can do your company more harm than good. So, how do you go about getting an investigator who will do a high-quality job and keep your company out of trouble?
Well, here’s the bad news. There is no formal training required to become a workplace investigator. It is a new and growing field that is attracting a lot of players. Right now, you can hire a private investigator whose training does not include employment law, human-rights law or organizational behaviour. There is no guarantee a licensed private investigator will understand requirements of the legal duty to accommodate or have any exposure to race, gender and class issues. You can hire a human-resources consultant, but make sure of their background: years of experience in compensation or staffing won’t have taught investigative techniques, the concepts of natural justice and procedural fairness. You could also hire a lawyer to do the investigation. But remember that the investigation report would not be protected by attorney-client privilege; if that were the case, the investigator could not claim to be impartial.
As someone who has been doing this work for quite some time, and someone who has been retained to redo botched investigations, I can tell you that investigations are demanding, quasi-legal matters with the potential to play out in far-reaching legal and human terms. Do your homework, get references on the investigator, and read the following advice. You will stand a better chance of making sure any investigation in your workplace will be carried out in a fair and defensible manner.
When you become aware of a complaint:
1. Get going quickly
A ready response shows that you are taking the complaint seriously. The longer you wait, the greater the chance that high-quality evidence is lost. Documents disappear. Hard drives are wiped. People forget details. Memories become influenced by other events and recollections become tainted. While employees are waiting for action, the work force can become polarized, even dysfunctional. Disruption to the workplace is inevitable. The sooner the investigation is started, the sooner it will be completed.
2. Investigators must be independent and be seen to be independent
At the end of the investigation, typically at least one party will be unhappy with the outcome. Bringing in a person from outside increases perceptions of impartiality, as does offering the parties a choice of investigator. An internal investigator may see it as a career-limiting move to find a senior manager guilty of harassment.
3. Use trained and experienced investigators
The more complex and nuanced the circumstances surrounding the complaint, the greater the opportunity to botch the investigation. Has the investigator had any training? Where? What was the nature of this training, and in what areas? How many cases has this individual apprenticed on or handled independently? What is the investigator’s quality-control process? It is vital that the person understand your industry.
4. Identify all relevant issues and delineate the terms of reference for the investigation
Set out exactly what is to be investigated and what is to be handled through other processes. The parties need to understand the scope and limitations of the investigation. Identify the deliverables (e.g. signed interview statements, nature and content of report, an anticipated completion date). Put a ceiling on the fee to be charged; an experienced investigator will have a good sense of the time required to do the job. Have the investigator keep a time log of activities. Require a justification for any increase.
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5. Back off and let the investigator do the job
The investigator is the guardian of the investigative process and wholly responsible for its integrity. Try not to rush him or her but do ask for weekly progress reports. Often the investigator will make a decision as to guilt based on an assessment of the complainant’s and respondent’s credibility, especially in “he said/she said” cases. The investigator will decide who to interview, the sequence of interviews, what questions to ask, what documents and other evidence are required, how that evidence is analyzed and make the final determination upon conclusion of the investigation.
Margaret Michaels is the owner of Margaret Michaels HRC Inc., an Ottawa-based consultancy providing expertise in discrimination and harassment issues to employers.