Understanding the Test for Workplace Harassment
While there is widespread consensus on the definition of workplace harassment, determining when it has occurred is far more nuanced.
Every situation, relationship, and interaction is steeped in context. There is a continuum of behaviours ranging from normal workplace conflict to actionable harassment, so employees and employers must have the skills to identify and differentiate between them.
Here is our quick guide to understanding the test for workplace harassment and how it can help you determine whether the test is met for a behaviour you've experienced, witnessed, or has been reported.
What is Workplace Harassment?
While there will be slight variances in wording in different jurisdictions, the definition of workplace harassment remains consistent across Canada.
In Alberta, the Occupational Health and Safety Act defines workplace harassment as "a single or repeated incident of objectionable or unwelcome conduct, comment, bullying or action intended to intimidate, offend, degrade, or humiliate a particular person or group."
It is important to note that conduct is only considered harassment if it was known or ought to have been known that the behaviour was unwelcome. This means employers must consider both the harasser's knowledge of how their behaviour would be received and how a "reasonable person" would interpret the behaviour.
Typically, for a behaviour to be considered harassment, a series of incidents must occur. A single instance of unwelcome behaviour is unlikely to meet the test for harassment unless the behaviour is severe enough to demonstrate a significant and lasting impact on the complainant.
In addition to Respectful Workplace Policies, you should also have a policy that addresses workplace violence. It's important to note that physical or sexual assault is defined by the criminal code and will be dealt with according to that legislation. If you suspect assault, you should contact police immediately. However, this does not release you from your obligation to also conduct an internal investigation based on possible policy violations in your workplace.
What is the Test for Workplace Harassment?
In order to satisfy the conditions for harassment, there are generally three main questions employers need to address.
1) Is there a pattern of unwanted behaviour or a single incident egregious enough to create a significant and lasting impact?
2) Would any reasonable or average person of similar background and experience consider the unwanted behaviour meaningfully harmful?
3) Is the unwanted behaviour something that was either known to be unwelcome or should have been known to be unwelcome by a reasonable or average person of similar background and experience?
Keep in Mind…
Workplace Conflict and Workplace Stress are Not the Same as Harassment. Differences of opinion and disagreements are common in the workplace. However, if conflict is not addressed, it could escalate into harassment. Similarly, the legitimate exercise of managerial authority is not harassment unless the accompanying behaviour, such as the delivery of the message, crosses the line.
Have an Open Mind. Avoid jumping to conclusions when a workplace complaint is made. Always seek a third-party investigator if it is impossible to investigate a complaint fairly and without bias.
Document Everything. Be sure you track, in writing, all information related to reported incidents and investigations.
Seek Professional Advice. If you suspect you may be dealing with harassment, seek professional advice early to help you prevent significant impact on your workplace culture, loss of employee trust, and retention, not to mention a possible outlay of time and money and the risk of legal action against your business.
Provide Training and Leadership Development. Many potential issues can be addressed before they ever become harassment if you invest in building respectful work environments. All employees need training to understand harassment so they'll recognize it when they see it and will have the confidence to speak up and report.
Review Your Workplace Harassment Policy Annually. Employers must prepare and review a policy on workplace harassment at least annually, as required by the Occupational Health and Safety Act.
Employers have a legal duty to respond to every complaint and conduct at least a preliminary investigation to determine if it meets the test for harassment. Some will require a full, formal investigation; however, the bar may not be met in every instance. Ultimately, all issues brought to your attention provide you with a real opportunity to address all types of behaviour that may be having a negative impact on your employees and the workplace.
If you see, suspect, or receive a report of any issues, act quickly to support and protect your employees and your business.
Still have questions about workplace harassment? Cenera's expert Workplace Investigation team helps companies of all sizes understand their obligations and conduct thorough, timely, and unbiased workplace investigations.
Reach out to us today to learn more.
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