Sexual harassment investigations no easy task

When the CBC hired employment lawyer Janice Rubin of Rubin Thomlinson to look into the handling of workplace harassment allegations against former on-air personality Jian Ghomeshi, it underscored the complexities of workplace investigations. Often involving he said/she said scenarios and sensitive information, these inquiries are not easy.

But having a solid policy around sexual harassment and doing a proper investigation is important if an employer wants to avoid a human rights tribunal, according to Doug MacLeod, principal at MacLeod Law Firm in Toronto.

“If the employee believes that their complaint has been taken seriously and fairly investigated, then they’re much less likely to go to the human rights tribunal. That’s always an option — you can file an internal complaint and still go to the tribunal. But if the employer’s handled it properly, it’s much less likely that they’re going to go to the tribunal.”

One of the big challenges is the differing perspectives involved, according to Andrew Pinto, a partner at Pinto Wray James in Toronto. Along with the complainant (potential victim) and respondent (potential harasser), there’s also the employer.

“The challenge for most organizations is how best to balance on the one hand the control that you want to give to complainants, at least to some degree, while also maintaining an overall accountability of the organization to maintain the legal requirement, which is an atmosphere free from discrimination and harassment. And those can sometimes lead in different directions.”

Often the employee feeling harassed wants to have a private conversation and simply let her employer know about an incident that happened, said Pinto. 

“It might also be that they’re genuinely not sure if it is harassment but it’s left them feeling uncomfortable and they just want someone in human resources to know.”

HR has a responsibility to make further inquiries as to whether others have experienced similar harassment, he said.

“That results, potentially, in a loss of control for many complainants, which is not only upsetting for the complainants but can lead to a chilling effect,” said Pinto, as people might not realize that if they bring something to HR’s attention, it could result in such an investigation.

And the people on the receiving end in the organization have to be very mindful of these dynamics, he said.

“The consequences to everyone involved can be far-reaching and… even career-limiting for the respondent, which is not something that all complainants want.”

Maintaining confidentiality is a tricky part of the equation, according to MacLeod.

“All you can say to somebody who you’re interviewing is ‘We will keep this confidential to the extent that we can but if it goes to a hearing, you’re going to be compelled to testify and it’s not going to be confidential anymore.’ So that’s the reality of it.”

In British Columbia, newer WorkSafeBC and occupational health and safety obligations are making investigations more challenging when it comes to confidentiality, according to Marino Sveinson, a partner in the labour and employment group at Bull Houser in Vancouver.

“When you go and inject into it obligations on employers to treat bullying and harassment as a safety hazard just like any other hazard in the workplace and you impose obligations to investigate, then the question becomes: Are the exact same obligations that are built right into the regulations as statutory law, do they apply, which includes involving the joint health and safety committee?”

A recent ruling by the Quebec Court of Appeal, Ditomene v Boulanger, also highlights the complexities of investigations. College teacher David Ditomene was accused of psychological harassment by two colleagues, so an outside investigator, Louise Boulanger, was hired to look into the matter. But Ditomene, who was eventually fired, was unhappy with how Boulanger handled the case and sued for moral damages for pain and suffering.

Basically, he felt he should have been given more time to respond to the allegations and he should have been given an original copy of the complaint, with the names of all participants — as per the employer policy — but Boulanger chose to give him a summary, said Marie-Josée Bélainsky, a lawyer with the Professional Liability Insurance Fund at the Barreau du Québec in Montreal.

“The investigator… was of the opinion that legally that was a mistake (in) that policy because it was contrary to the law. So she interpreted the policy in saying she could not give that to him,” she said.

“And the Court of Appeal is… saying that… the investigator should use judgment with respect to the wording of the policy and… what was important is that (Ditomene) should have obtained all the allegations of the complainants. And he got it.”

Having read a digest on this decision, Sveinson said the outcome seems to be there’s a lower standard of procedural fairness for a harassment investigation in an employment context than there is at an administrative tribunal or a professional body.

“It’s not a perfect procedural fairness legal standard.”

Internal v. external investigations

Whether a complaint should be handled internally or contracted out to an outside investigator should be decided on a case-by-case basis, said MacLeod. If someone is a serial complainer, you don’t want to spend thousands of dollars on an external person, he said, but if there’s a complaint against the CEO and the potential for PR fallout, HR may want to bring in an experienced, and expensive, investigator.

A lot of workplaces don’t have HR staff or if they do, they lack the expertise and confidence to handle such an inquiry, said Sveinson, who said he is seeing more investigations skill set training seminars.

“Whether it’s harassment or anything else, that seems to be the fundamental skill set that is needed in the workplace these days because it takes a bit of experience, it’s a different thing to really know, if you’re starting out —  are you carrying this out, doing enough and making some judgment calls along the way.”

Employees accused of bad behaviour may also request they have a lawyer or another representative at the interview and, again, this should be dealt with on an individual basis, said MacLeod. 

“If you’ve got the serial complainer and it looks like there’s not much meat on the bone, why unduly complicate what really is a pretty simple investigation by allowing a lawyer or even a co-worker to come in or a parent or whatever?”

But if the investigation concerns a senior executive, there’s more at stake, he said.

“Let’s say this person has built up a 30-year career and has a stellar reputation and this allegation could tarnish their reputation forever. In that case, you may want to let the person bring their own lawyer in and make sure the investigation is… like the Cadillac investigation.”

But participants may have concerns about their involvement in the process. The Canadian Media Guild (CMG), for example, has expressed concerns about the investigation by Rubin at CBC, telling members any information they share could be used against them.

“Rubin’s recordings may be… provided to CBC management and relied on by management to discipline the employee being interviewed. CMG has been unable to receive assurances against self-incrimination and cautions that the contents of these interviews could be used as the basis for disciplining the person making the statements,” said Marc-Philippe Laurin, president of the CMG branch at CBC, in a statement.

The Rubin investigation is a more difficult one because it has a dual purpose, looking both at Ghomeshi’s conduct and what people may have known, said Pinto.

“If CBC management determined that there was some responsibility to report something and someone didn’t, then of course that is the concern that’s being highlighted by the Canadian Media Guild here.”

If leaders were aware and didn’t act, they could very well be disciplined, said MacLeod.

“Assuming one of their job duties is to administer the company policies and they’re aware that the policy prohibits sexual harassment and they didn’t do anything, they may have some problems.”