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Howard Levitt and Muneeza Sheikh

As workplace sexual harassment and assault cases continue to make headlines across the country, it’s a good time to offer a refresher on how employers should handle such incidents, if they arise.

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Put simply: sexual complaints are not regular incidents of misconduct, which require a standard investigation. Standard protocols around workplace investigations may offer little help when dealing with victims of serious abuse.

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In some cases, the sexual improprieties toward employees come from the upper ranks of the company, and awareness of the incidents trickle down. In other words: everyone knows and no one says anything for fear of being fired or ostracized, including potential victims. In other cases, the knowledge of the abuse is not widespread and employers can insulate themselves from liability and negative internal PR if they handle the allegations with caution.

Dealing with complaints on harassment or physical violence in the workplace is a sensitive process that can be taxing on all involved. When the harassment or abuse is of a sexualized nature, the stakes are higher and the exposure to liability for employers on its mishandling could be worse. The employees are often traumatized (or worse) and we find that employers move to quickly investigate without appreciating the intricacies involved in questioning victims of sexual harassment/assault. A timely investigation is important, but while employers should move quickly, they must also be aware that a case may be launched against them. Put differently, it is critical for employers to “come correct” on the handling of these cases.

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Whether we represent an employer accused of committing or facilitating the harassment or the employee complaining, the same patterns emerge: investigations are sloppy and rushed. Their shoddiness is often what creates the primary liability.

So, what to do?

The first step is understanding what could happen to a person after they are abused sexually. Often, victims complain of regressing to their younger selves to block the abuse, going into a “freeze mode,” or reverting into a state of denial. As a result, it should not surprise employers that incidents are sometimes not reported until well after they occurred. The timelines applied to general misconduct complaints may thus mean little.

When an employee complains of sexual harassment or violence in the workplace, they should not be criticized for failing to report the incident in a “timely manner.” The trauma associated with sexualized abuse often affects everything, including the reporting of that abuse.

Employers should also recognize that employees are looking to them for guidance on all aspects of “what to do next.” In a lot of cases, the employer (where the abuse involves another employee) is the first point of contact. As such, employers are unwittingly tasked with providing advice in an area where they may have little expertise. Often, employees will ask employers if there should be police involvement. Where an incident involves clear violence, employers should involve the police. Where it is unclear (and sometimes it is), employers must encourage employees to seek independent counsel (i.e., a criminal lawyer) on whether they should involve authorities. Some employees take their cues from their employers, and you should be careful of what you say in the aftermath of abuse-related allegations.

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Finally — these investigations (although we usually strongly advise against third-party investigations for reasons discussed in other columns) should almost always be conducted by an unbiased third party that specializes in sexual abuse and violence. This is particularly important where the allegations of sexual harassment and abuse are sensitive, involve upper management or could implicate multiple employees. It not only “looks better” to have a third party involved, it actually is better. It also sends a clear message to the employee in question (and other employees if knowledge of the incident is widespread) that the employer is taking the incident seriously.

None of this changes the fact that an employer is absolutely entitled to make a finding that the allegations were unsubstantiated, and that no harassment or abuse took place. Even in the face of this finding, you are still sending your employees clear and positive messaging, signalling that you are vigilant in determining whether your workplace fostered an environment where abuse was rampant.

It is not just about being seen to do the right thing, it is about doing the right thing and educating management and HR in your workplace on how to deal with allegations of a sexualized nature which arise at work.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Muneeza Sheikh is a partner at Levitt Sheikh.

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