If a workplace sexual harassment complaint is handled correctly, does it end there?
By Jeffrey R. Smith
When a case pops up where an employer is found to have failed to properly investigate an employee’s harassment complaint, it can be a little puzzling.
While it may require time and effort, there are consequences for not meeting the duty to investigate such complaints, not to mention a possible negative ripple effect through the workplace. There also isn’t really a reason not to, since an employer conducting such an investigating isn’t really exposing itself to liability by conducting an investigation.
This was borne out recently when a Yukon government employee, who was seconded to a position with a First Nations band, was accused of sexual harassment by a co-worker. The employee filed a defamation suit against the co-worker as well as the personnel officer who reported the allegations back to the government.
The Yukon Court of Appeal could see that from the perspective of the accused employee, the allegations of sexual harassment could hurt the employee’s reputation and standing in the community and, therefore, could be seen as defamatory. However, the accusations weren’t made in a normal social environment — they were made at the workplace within the context of employment.
The co-worker didn’t go public, but rather informed managers at the workplace and the personnel officer informed the accused employee’s superiors in the government. As a result, the allegations and the personnel officer’s reporting of them were protected by a “qualified privilege,” said the court: W. (J.) v. Van Bibber, 2013 CarswellYukon 114 (Y.T. C.A.).
Employers have a duty to investigate harassment complaints, regardless of the perceived merit. Obviously, if an employee had made multiple complaints that all turned out to be unfounded, there may be some leeway — the “cry wolf” principle. But when a complaint is received, usually it must be treated seriously until it’s proven or disproven. If an accused employee makes noise about the danger of such accusations and the risk of defamation, the employer shouldn’t be worried as long as it maintains confidentiality and impartiality.
It’s important to note that, in the case above, the court mentioned that if there is any element of malice in a harassment complaint or an employee’s treatment of it, “qualified privilege” would not apply and there could be grounds for defamation of character.
Having good policies and following them faithfully will put to rest any concerns that can come from dealing with harassment complaints in the workplace. Such matters are very sensitive — especially when the jobs and livelihood of people are put at risk — so proper investigation and procedure are important and employers should be aware of what constitutes a proper investigation.
How far should a proper investigation into sexual harassment go? If no harassment is found, should there be grounds for an employee to claim defamation if it stays within the context of employment?
