Workplace Harassment Policy and Investigation

Harassment Policy and Investigation

• Staff should be trained on the policy and procedures and sign off on it annually
• When investigating a harassment complaint, employers should:
  • Investigate in a timely manner
  • Ensure the investigator is unbiased and properly trained
  • Give the accused a chance to adequately respond
  • Follow set policies and procedures
  • Ensure witnesses are interviewed separately
  • Ask non-leading questions
  • Interview third-party witnesses
  • Document the investigation
  • Keep an open mind
  • Consider the entire context

Employee Benefit Plan

• The Ontario Human Rights Code provides that an employee excluded from a benefit, pension, or group insurance contract due to a disability is entitled to compensation from the employer
• Employees absent from work due to a disability are entitled to receive the same benefits as those not working for other reasons
• Employers may be vicariously liable for the discriminatory acts of their agents and employees in the workplace
• Employers are directly liable for the actions of management
• Employers may avoid liability for harassment by non-managerial employees if they can show diligence in preventing and responding to harassment

Human Rights Applications

• The Ontario Human Rights Commission advocates for human rights and promotes public understanding of human rights requirements
• The Ontario Human Rights Tribunal receives applications and has broad procedural and substantive powers to investigate
• The Human Rights Legal Support Centre provides free legal advice and assistance to people making a human rights application
• Employers who receive an application should immediately develop a thorough response
• The tribunal may defer an application if the same subject matter is being dealt with in another proceeding
• The tribunal has broad remedial powers and may order monetary compensation, non-monetary restitution, or performance of anything the tribunal feels ought to be done

Occupational Health and Safety Act

• Aims to protect workers from violence and harassment

Recruitment, Selection, and Hiring

• The Code protects job applicants as well as employees
• Employers should ensure they set out a position's essential duties, since only they may be used in deciding whether a person is capable of performing the job
• Employers have a duty to accommodate unless it would cause undue hardship, which must be proved on a balance of probabilities
• Employers should broadly advertise positions to avoid perpetuating discriminatory practices
• Advertisements should not contain qualifications that exclude members of protected groups
• Questions on applications should not directly or indirectly classify candidates by prohibited grounds
• Interviewers should not ask questions that relate to protected grounds unless the answer could legally form the basis of a hiring decision

Hiring Processes

• Pre-employment medical or fitness exams should take place only after a conditional offer of employment has been made
• Tests that measure job-related skills are acceptable but should take care to avoid discriminatory requirements
• Employers should aim for a fair process that focuses on each candidate's ability to perform the essential job duties