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The same principles apply

The principles of an effective anti-harassment policy in a small organization are the same as for larger employers. Your anti-harassment policy must be:

• unequivocally supported by management
• clear
• fair
• known to everyone, at all levels of your organization
• applied to everyone, at all levels of your organization

Limited resources

All employers are liable for harassment by their employees, especially if they did not take steps to prevent harassment in the workplace, or did not treat it seriously once it happened. The difference, of course, is that smaller companies will frequently not have the financial resources, or the personnel, to allow them to develop the same kind of reporting, mediation, and investigation routes as a larger company.

Written policies give important information

An employer with a very small company will find it fairly simple to inform employees verbally that harassment will not be tolerated, and that anyone harassing another will be disciplined. Still, employees need to have consistent and easily accessible information about what specific behaviour is unacceptable, what the procedure is if they want to complain, what kinds of discipline will be enforced, and what remedies they can expect if they are harassed. They will also need to know what other agencies can deal with a complaint. This is where a written policy is useful and important. But it may not need to be as complex or formal as that of a larger organization.

Close relationship with employees

The manager's role is crucial in a small company. Managers will likely have a closer day-to-day knowledge of what happens in the workplace, and will be in an even better position than in a large company to be aware of harassing situations, take direct action, and set an example of appropriate behaviour. In fact, employers with a smaller number of employees will likely have much more direct contact with those employees themselves, and a closer working relationship. The employer may be the only manager, or may have a small number of managers.

Provide alternate avenues of complaint

This may, however, lead to problems for small employers. It may be more difficult to provide alternate avenues of complaint; for example, if an employee's supervisor is the alleged harasser, and is also the only person of authority in the workplace. It is especially important for employees in small companies to know what other agencies are available to help them. It is also especially important for the employer to have a strong and visible commitment to a harassment-free workplace. For example, a trusted senior employee might be given the responsibility of receiving harassment complaints and dealing with them in the initial stages, and the employer her or himself must be available to employees.

Combine with others to increase resources

An employer without a lot of resources of her or his own can get information and support from other agencies, or from others in the same industry. The Canadian Human Rights Commission has and an informative harassment prevention brochure, explaining what harassment is and suggesting options for dealing with it, that employers can distribute to their employees. Small companies in the same industry might want to combine resources to develop a joint policy, with people from each company serving as anti-harassment educators, counsellors, mediators, and investigators. A number of employers could form a mutually supportive advisory group. Individual employers can also attend relevant seminars or training sessions given by employer organizations, small business associations, or industry associations. These organizations may also have brochures, posters, and so on that an employer could use in the workplace.

Employees must know about the policy

As with larger companies, prospective employees and new staff should be informed of the anti-harassment policy during their hiring interviews, and during their initial training. Ongoing education is also important; reminding employees of the policy and recirculating it annually during a staff meeting is an example. And periodic review of the policy, including feedback from employees, is essential.

Some employers ask their employees to sign a statement indicating that they have read and understood the anti-harassment policy. Ideally, this would be combined with anti-harassment training which would include an explanation of what constitutes harassment and the options available to anyone who believes they are being harassed.

PART 6: MODEL POLICY FOR SMALL ORGANIZATIONS

If you have a small organization, you may find this abbreviated anti-harassment policy more appropriate for your workplace than the model policy in section 3. It is written for distribution in XYZ Company, a fictitious organization.

6.1 ANTI-HARASSMENT POLICY STATEMENT

TO: ALL EMPLOYEES
DATE:
SUBJECT: Policy Statement for XYZ Company

Our commitment

At XYZ Company, we are committed to providing a safe and respectful work environment for all staff and customers. No one, whether a manager, an employee, a contractor, or a member of the public, has to put up with harassment at XYZ Company, for any reason, at any time. And no one has the right to harass anyone else, at work or in any situation related to employment. This policy is one step toward ensuring that our workplace is a comfortable place for all of us.

Harassment is against the law

The Canadian Human Rights Act and the Canada Labour Code protect us from harassment. The Criminal Code protects us from physical and sexual assault. You have a right to live and work without being harassed, and if you are harassed, you can do something about it.

Employees' responsibilities

All employees have the responsibility to treat each other with respect, and to speak up if they or someone else is being harassed. All employees have a responsibility to report harassment to the appropriate person. All employees are responsible for respecting the confidentiality of anyone involved in a harassment complaint.

Managers' responsibilities

Each manager and supervisor is responsible for fostering a safe working environment, free of harassment. Managers must set an example for appropriate workplace behaviour, and must deal with situations of harassment immediately on becoming aware of them, whether or not there has been a complaint. Courts may impose penalties on the employer and the manager, even if neither of them was actually involved in or aware of the harassment but should have known about it. A manager that did nothing to prevent harassment or to mitigate its effects may find her or himself facing financial and legal consequences.

XYZ Company's responsibilities

As an employer, XYZ Company also has a responsibility to be aware of what is happening in the workplace. As President, I promise to treat all incidents of harassment seriously. I undertake to act on all complaints and to ensure that they are resolved quickly, confidentially, and fairly. I will discipline anyone who has harassed a person or group of people or who retaliates in any way against anyone who has complained of harassment, given evidence in harassment investigations, or been found guilty of harassment. I will discipline managers who do not act properly to end harassment. At XYZ Company, we will not put up with harassment.

Sincerely, Ms/Mr ABC, President.

What is harassment?

Harassment is any behaviour that demeans, humiliates, or embarrasses a person, and that a reasonable person should have known would be unwelcome. It includes actions, comments, or displays. It may be a single incident or continue over time.

Some examples of harassment include:

• unwelcome remarks, slurs, jokes, taunts, or suggestions about a person's body, clothing, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, physical or mental disability, sexual orientation, pardoned conviction, or other personal characteristics;
• unwelcome sexual remarks, invitations, or requests (including persistent, unwanted contact after the end of a sexual relationship);
• displays of sexually explicit, sexist, racist, or other offensive or derogatory material;
• written or verbal abuse or threats;
• practical jokes that embarrass or insult someone;
• leering (suggestive staring) or other offensive gestures;
• unwelcome physical contact, such as patting, touching, pinching, hitting;
• patronizing or condescending behaviour;
• humiliating an employee in front of co-workers;
• abuse of authority that undermines someone's performance or threatens her or his career;
• vandalism of personal property; and/or
• physical or sexual assault.

The Canadian Human Rights Act protects employees and customers from harassment that is related to their race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, pardoned conviction, or sexual orientation.

Disrespectful behaviour, known as "personal" harassment, is also covered in this policy. While it also involves unwelcome behaviour that demeans or embarrasses an employee, the behaviour is not based on one of the protected grounds named above.

Harassment can take place between co-workers, between a manager and employee, between people of the opposite sex or of the same sex, between an employee and a client, or between an employee and a job applicant.

What isn't harassment?

Consensual banter or romantic relationships, where the people involved agree with what's happening, are not harassment. Appropriate performance reviews, counselling, or discipline by a supervisor or manager are not harassment.

Where harassment happens

Work-related harassment can take place in the workplace itself, or outside of the workplace in a situation that is in some way connected to work. For example, employees (and clients) must be protected from harassment during delivery trips, off-site meetings, business trips, and any other

event or place related to employment or when the employee is present in the course of employment.

6.3 COMPLAINT PROCEDURES

Speak up

If you believe you are being harassed, speak up right away. If possible, tell the person that you are not comfortable with their behaviour, and want it to stop. Usually, that will be all you need to do. You can speak to them directly, or write them a letter (date it and keep a copy). In addition, tell someone you trust what is going on.

Keep notes

Record all unwelcome or harassing behaviour. Write down what has happened, when, where, how often, who else was present, and how you felt about it. Write down every instance of harassment.

Report it

If the harassing behaviour occurs again, or if you are unable to deal directly with the person harassing you, report it to the person designated to receive complaints. At XYZ Company, the designated anti-harassment person is ________________________. If that person is involved in the complaint, please see Ms/Mr ABC, President of XYZ Company, personally. If for some reason you are unable to report harassment to someone at XYZ Company, you might be able to go to your union, or the police (for a case of sexual or physical assault). You may also go directly to the Canadian Human Rights Commission.

Once a person reports harassment, the designated anti-harassment person will ask questions such as what happened, when, where, how often and who else was present and will keep notes of this conversation.

Informal procedures

You may want to proceed informally at first. This means you can ask the designated person to help you communicate with the other person, or to speak to them on your behalf, without going through actual mediation or a formal complaint. The informal approach may not always be possible or successful, but when it is, you may be able to resolve the situation quickly.

Mediation

It may be appropriate to attempt to resolve the complaint through mediation before going to a formal investigation. If a qualified person from outside the organization is available to act as a mediator, and the complainant and alleged harasser agree, that person will attempt to help the parties settle the complaint. If no one is available, the designated person may help settle the complaint, if the parties agree. The mediator should not be involved in investigating the complaint, and should not be asked to represent the company at any stage of any proceedings related to the complaint.

However, either party has the right to refuse mediation. You are the only one who can decide if mediation is appropriate for you. Do not agree to it if you feel pressured into it, or feel that you are at a disadvantage or vulnerable because of your age, sex, race, colour, religion, sexual orientation, economic position, or for any other reason. If someone suggests mediation but you are uncomfortable with it, you can say so, and it will not be part of the complaint process. If mediation does become part of the process, each person has the right to be accompanied and assisted during mediation sessions by someone they choose.

Investigation

If you want to go ahead with a formal complaint, it will be investigated, either by a specially trained person from within the organization or a consultant. This person will investigate the complaint thoroughly. He or she will interview the complainant, the alleged harasser, and any witnesses. All employees have a responsibility to co-operate in the investigation.

Both you and the alleged harasser have the right to be accompanied by someone with whom you feel comfortable during any interviews or meetings.

An investigation will involve:

• getting all pertinent information from the complainant;
• informing the alleged harasser of the details of the complaint, and getting her or his response
• interviewing any witnesses;
• deciding whether, on a balance of probabilities, the harassment did take place; and
• recommending appropriate remedies, penalties, or other action

Substantiated complaints

If the investigator decides the complaint is valid, he or she will report in writing to the President, ideally within a week of completing the investigation. The investigator will recommend appropriate remedies and disciplinary action, and any other necessary action. The President will decide what action to take, and will inform both parties of the decision, in writing, ideally within a week of the report being submitted.

Remedies for the victim

Remedies for a person who has been harassed will include any of the following, depending on the nature and severity of the harassment:

• an oral or written apology from the harasser and XYZ Company;
• lost wages;
• a job or promotion that was denied;
• compensation for any lost employment benefits, such as sick leave;
• compensation for hurt feelings; and/or
• a commitment that he or she will not be transferred, or will have a transfer reversed, unless he or she chooses to move.

Corrective action for harassers

Corrective action for harassers will include any of the following, depending on the nature and severity of the harassment:

• a written reprimand;
• a fine;
• a suspension, with or without pay;
• a transfer, if it is not reasonable for the people involved to continue working together;
• a demotion; or
• a dismissal.

Harassers may also be obliged to attend an anti-harassment training session.

Unsubstantiated complaints

If there is not enough evidence to support an allegation of harassment, the investigator will not recommend any penalties or remedies.

Complaints made in bad faith

In the rare event that the complaint was made in bad faith, that is deliberately and maliciously filed knowing it had absolutely no basis, the complainant will be subject to the same penalties as a harasser. The person unjustly accused of harassment will have her or his reputation restored, and will be given the benefit of any necessary remedies that would be given in a case of harassment.

Retaliation

Anyone who retaliates in any way against a person who has been involved in a harassment complaint will be subject to the same penalties as a harasser.

Confidentiality

XYZ Company will not disclose any information about a complaint except as necessary to investigate the complaint or to take disciplinary action, or as required by law. It encourages employees and managers to respect confidentiality in the same way.

Time limits

Managers have a responsibility to make sure harassment ends as soon as they become aware of it. Complaints will be resolved as quickly as possible, ideally within one month of being made.

Complainants should be aware that there is a one-year time limit for filing a complaint with the Canadian Human Rights Commission.

Union grievances

Union grievance procedures may be available in certain cases of harassment. Please speak to your union representative for more information about filing a grievance.

Other options

An employee of XYZ Company who is not satisfied with the result of a harassment complaint can consult the Canadian Human Rights Commission. Information on filing a complaint can be obtained by phoning the Commission's toll-free number 1-888-214-1090.

If the harassment involves physical or sexual assault, which are criminal offences, the police are the appropriate avenue.

6.4 POLICY CHANGES

If you have questions or comments about the policy or its application, please speak to the designated person or to the president of XYZ Company. We will make changes to the policy as necessary, and will review it regularly.

PART 7: CHECKLIST FOR AN ANTI-HARASSMENT POLICY: SMALL ORGANIZATIONS

Content of the policy

   Policy statement--management supports a harassment-free workplace

   The law

   Employees' responsibilities and rights

• the right to a harassment-free workplace
• the responsibility to treat other employees with respect
• the responsibility to speak up when harassment occurs
• the responsibility to report harassment to the appropriate person
• confidentiality

   Supervisors', managers', and employers' responsibilities

• treat all employees, clients, suppliers, contractors with respect
• report or investigate all complaints
• set a good example
• refuse to tolerate harassment

   An undertaking that allegations of harassment will be dealt with seriously, speedily and confidentially

   Descriptions of harassing behaviour

   Procedures

• practical guidelines for employees and management
• informal and formal ways of proceeding
• encourage employees to choose the informal approach first
• mediation
• detailed steps to be taken in complaints
• time frames
• who is responsible for decisions
• appeals
• information about other agencies that deal with harassment

   Corrective action, safeguards and remedies

• the range of penalties for a harasser
• whether information about the complaint will be included in a harasser's file
• remedies
• information about the complaint will not be put in the complainant's personnel file, when complaint is in good faith

   Protection against victimization or retaliation for employees who complain of harassment, or who testify in an investigation

Education

   Communication and circulation of the policy to all employees and managers, current and new, through

• orientation or information session
• staff meetings
• memos or e-mail
• pay slip notices
• films
• posters
• brochures

   Education of all staff

• training managers to react appropriately
• handle cases of harassment appropriately
• maintain the anti-harassment atmosphere
• training employees to respect each other
• maintain the anti-harassment atmosphere
• training harassment counsellors and investigators to perform their respective roles
• make ongoing anti-harassment training part of other training sessions

Monitoring

   A commitment to periodic review of the policy

• openness to employee comments
• solicitation of feedback from counsellors, managers, and employees
• exit interviews with personnel leaving the organization
• make necessary adjustments to policy and procedures

PART 8: FREQUENTLY ASKED QUESTIONS: INFORMATION FOR EMPLOYEES

Is harassment just a matter of opinion?

No. Because of variances in life experiences, different people may have different perceptions of what harassment is, but we can still develop some common understandings. Any unwelcome behaviour that demeans, humiliates, or offends a person, or puts sexual conditions on a person's job, is harassment.

What if everyone else in the workplace is comfortable with the behaviour?

People react to behaviour in different ways. A person may think her or his conduct is welcome or innocuous, when in fact the recipient dislikes it, but is going along with it to avoid a confrontation. This can happen especially where there is a difference in age, racial or cultural background, seniority, level of authority, or personal power between those concerned. Sometimes people feel they have to join in to avoid being ostracized, victimized, or teased by their peers. However, if you are uncomfortable with this behaviour, you have the right to file a complaint and follow the steps outlined in this policy.

How does a person know what behaviour is unwelcome?

Sometimes a person can say directly that something that is offending or humiliating. Other times, we have to be aware of non-verbal messages and clues. If someone looks embarrassed or hurt, turns away, leaves the room, or avoids another, chances are they do not welcome certain behaviour.

The courts have created the "reasonable person" rule; in other words, we assume that a reasonable person would know that certain types of behaviour are unwelcome. For example, a reasonable person would know that asking for sexual favours, and threatening someone's job if they do not comply, is unacceptable. In cases like this, the courts may presume the behaviour was unwelcome, even if the complainant has never said "no" or "stop," and seemed to go along with the situation.

A relationship where both people are involved of their own free will is not harassment. However, if one person decides to end the relationship, the other does not have the right to insist, or to continue the sexual attention. And managers should be cautious when getting involved with workers, especially anyone who is under their supervision. The imbalance of power may mean that the worker has not actually consented, but feels coerced into the relationship.

What if my employer doesn't know harassment is taking place?

Only employers can really prevent harassment in the workplace. So the ultimate responsibility rests with them. The law says that even an employer who didn't actually know about the harassment is still responsible, if he or she should have known it was occurring. If an employer can show that he or she took all reasonable steps to prevent and deal with harassment, the legal and financial consequences may well be less severe.

Can it be harassment if it only happened once?

Yes. Frequently, harassment is a series of incidents. However, even something that only happens once can be harassment, if it was unwelcome to the person it was directed at.

What if the harassment takes place outside the workplace, or after regular work hours?

Any place or time that people are gathered for work-related reasons is still considered part of the "Workplace". This includes business travel, conferences, telephone calls, company social gatherings, and job interviews. Harassment is not permitted in any of these situations, and employers are responsible for dealing with it in these circumstances.

What if I didn't mean to harm or offend anyone?

Even the best intended comment or action may be harassing, if it is unwelcome or offensive to another person. Harassment is not about a person's intent. It is about how the behaviour affects the victim. You may only have intended to be funny, for example; but if someone else is humiliated by what you did or said, you may have harassed them without meaning to.

What if someone at work tries to retaliate against a complainant?

Employers are legally required to protect their employees from retaliation. Retaliation against anyone involved in a complaint will not be tolerated, and will have serious consequences. Generally, the penalties for retaliation are the same as for the original harassment, and may be even more severe.

What if an employer doesn't deal properly with a problem of harassment?

An employee who feels her or his concerns have not been properly addressed has the right to contact the appropriate human rights commission or other organization. If an outside agency determines that harassment has taken place, the employer may face financial or other consequences: giving an apology, compensating the complainant for lost wages and injury to self-respect, or human rights training, for example. The exact remedy will depend on the complaint.

Can my union help me?

Unions can be involved in developing a workplace's anti-harassment policy, and in educating union members. Once there has been a harassment complaint, an employee who is involved may be able to file a grievance with the union, if the employer did not handle the complaint properly.

What if I am sexually assaulted at work?

If the harassment involves physical or sexual assault, you should contact the police. Physical and sexual assaults are criminal offences.

APPENDIX A: LEGISLATION

The Canadian Human Rights Act

14 (1) It is a discriminatory practice,

(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,

(b) in the provision of commercial premises or residential accommodation, or

(c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.

(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.

Canada Labour Code, Part III

Division XV.1

Sexual Harassment

247.1 In this Division, "sexual harassment" means any conduct, comment, gesture or contact of a sexual nature

(a) that is likely to cause offence or humiliation to any employee; or

(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

247.2 Every employee is entitled to employment free of sexual harassment.

247.3 Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment.

247.4 (1) Every employer shall, after consulting with the employees or their representatives, if any, issue a policy statement concerning sexual harassment.

(2) The policy statement required by subsection (1) may contain any term consistent with the tenor of this Division the employer considers appropriate but must contain the following:

(a) a definition of sexual harassment that is substantially the same as the definition in s.247.1;

(b) a statement to the effect that every employee is entitled to employment free of sexual harassment;

(c) a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;

(d) a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer's direction who subjects any employee to sexual harassment;

(e) a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;

(f) a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and

(g) a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.

(3) Every employer shall make each person under the employer's direction aware of the policy statement required by subsection (1).