Plugging Loopholes: Banning Sex Harassment “in the Workplace”

Does your organization’s sexual harassment policy cover all forms of sexual harassment “in the workplace”? If so, it might contain a big loophole. Here’s what the loophole is and what you need to do to plug it.

THE LOOPHOLE

Employers clearly have a duty to protect their employees from sexual and other forms of harassment in the workplace. More precisely, the employer’s obligation is twofold:

• To refrain from engaging in harassment (and other forms of discrimination) itself; and
• To ensure that other people the employee works with don’t engage in this kind of behaviour.

Establishing and enforcing a written sexual harassment policy that establishes clear rules of conduct for the workplace is your principal protection against harassment and the potential for liability that comes with it.  But to the extent that your written policy focuses just on what goes on “in the workplace,” it may be legally inadequate. Here’s why you need to take the phrase “in the workplace” with a large grain of salt.

Workplace Harassment Doesn’t Just Happen At Work

Harassing behaviour most often occurs “at work”—during working hours within the physical confines of the workplace. But that’s not always the case. As government guidelines and case rulings have made clear the ban on workplace harassment extends to behaviour committed after work and away from the site:

• Employee sends sexually suggestive text messages to co-worker at home [Nastius v. Onion Lake First Nation, [2009] C.H.R.D. No. 4, Jan. 27, 2009];
• Male supervisor makes inappropriate sexual remarks to female subordinate t at his home after taking her there on the pretense of completing a work task [Soroka v. Dave’s Custom Metal Works Ltd., [2010] B.C.H.R.T.D. No. 239, Sept. 15, 2010]; and
• Employee gropes a co-worker in her hotel room during a business trip and then threatens retaliation if she breathes word of the incident to anyone [Goodwin v. Birkett, [2007] F.C.J. No. 592, April 23, 2007].

Sexual Harassment Doesn’t Always Come from Colleagues

The “in the workplace” mentality also rests on a second false assumption about sexual harassment: that it’s always committed by a manager, supervisor, co-worker or other person who works for the same employer. But in the real world, employees may also suffer harassment at the hands of any of the persons they encounter on the job, including clients, customers and even visitors to the facility. Thus, for example, an Ontario company was recently held liable for sexual harassment after a visiting Xerox repair technician swatted one of its employees on the butt with a rolled up newspaper [Wamsley v. Ed Green Blueprinting, [2010] O.H.R.T.D. No. 1482, July 8, 2010].

Especially vulnerable to offsite harassment by a non-employee are the legions of employees who do their jobs in the field, including sales representatives, home healthcare nurses and office-based employees visiting clients. These employees don’t give up their right to a harassment-free workplace when they work away from your premises. To the extent that your policy doesn’t recognize and provide protection for these employees, it’s legally inadequate. (See the box on page x below for a more detailed discussion on what the law says about protecting employees from off-site harassment.)

HOW TO PLUG IT

Of course, protecting employees from harassment is tricky when it takes place at the employee’s home, another company’s office or any other site beyond your control. So far, there haven’t been a lot of lawsuits dealing with offsite harassment. But the safest course of action is to treat offsite harassment exactly like you would harassment on your own premises. If an employee complains about offsite harassment, take appropriate steps to investigate the complaint and address the situation. Otherwise, you could be found liable for discrimination.

Example: A patient shouted racial slurs at a home healthcare attendant. The attendant immediately reported the incident and the company assured him that it would investigate. It also sent the client a letter telling him that it was prepared to cancel his service contract if he didn’t modify his abusive behaviour. The attendant kept working for the client until the client refused his services. The attendant believed the refusal was racially related and that the company was investigating it. But the company didn’t do so. It did send the client letters and met with him about his behaviour. But the client’s inappropriate behaviour escalated and the company finally cancelled his service contract—16 months after the attendant’s initial complaint. The attendant’s union filed a complaint accusing the company of failing to provide a workplace free of discrimination.

The arbitrator ruled that the company had failed to investigate and take prompt and effective action in response to the attendant’s harassment complaint. It noted that other arbitrators and courts have found employers liable for harassment of employees by third parties. And while an employer may not be able to control the behaviour of clients or customers, it does have control over how it responds to discriminatory conduct in the workplace—regardless of how and where that conduct occurs.

So, when confronted with complaints of harassment by a client or customer, the employer has a duty to respond with diligence and take reasonable steps to eliminate the problem, explained the arbitrator. Here, although the company’s initial response to the attendant’s complaint was appropriate, its follow-up and response to the refusal of service was “troubling.” The arbitrator criticized the company for not reporting back to the attendant and involving him in the investigation, which was inadequate anyway [Clarendon Foundation v. O.P.S.E.U., Local 593, [2000] 91 L.A.C. (4^th) 105, March 3, 2000].

Cover Off-Site Harassment in Your Policy

What are you expected to do to protect employees against offsite harassment? First, your company should include language in its harassment policy that makes it clear that the company takes offsite harassment seriously and treats such harassment exactly like it treats harassment on its own premises. Here’s Model Language that you can adapt and add to your company’s harassment policy:

MODEL LANGUAGE

Offsite Harassment: Every employee of ABC Company has the right to be free from harassment in the workplace. Employees who work outside of ABC Company’s premises, either full-time or occasionally, have the same right to be free from harassment while they’re performing their duties offsite. ABC Company takes offsite harassment seriously.

Employees who have been harassed while working outside of ABC Company’s premises should immediately report such harassment to their supervisors. ABC Company will treat the complaint with the same degree of seriousness and in accordance with the same procedures it applies in response to complaints of harassment that occurs on the premises.

Take 3 Steps to Deal With Off-Site Harassment Complaints

In addition, you should take the following steps when an employee complains about offsite harassment:

Step #1: Take Complaint Seriously

Complaints of offsite harassment are just as serious as complaints of harassment in your workplace. So treat them accordingly.

Step #2: Investigate the Complaint

As shown by the Clarendon case above, investigating an employee’s complaint of offsite harassment is a key part of your duty. But such an investigation may not be simple because the harassment happened in a place that your company doesn’t control and involved the conduct of people whom you don’t control and aren’t able to discipline. Even so, those obstacles don’t eliminate your duty to take reasonable steps to investigate the employee’s complaint.

So, you should consider asking for help investigating the complaint from the company that controls the place and people involved in the alleged harassment, she advises. First, find out from your employee exactly what happened, when and where it happened and who was involved. Then contact someone in the other company’s HR department and tell them what your employee told you. Ask for their assistance in investigating the complaint further.

Insider Says: What if the other company refuses to help investigate your employee’s complaint? Hopefully, you won’t encounter any resistance from that other company. But if you do, you’ll need to take action to protect your employee, such as removing her from that company’s account or no longer doing business with that company. These options are discussed in more detail below.

Step #3: Take Steps to Address the Situation

If the investigation concludes that your employee’s complaint was valid, take steps to address the situation. The other company will hopefully discipline the employee involved. But that’s not enough.

First and foremost, get the employee out of harm’s way. If possible, try not to send the employee back to the place where the harassment occurred. If it’s essential for the employee to go back to the lion’s den, tell the employee not to deal with the individual or individuals involved in the original harassment—even if they’ve been disciplined for their behaviour. And insist that the other company keep those individuals away from the employee. If the other company refuses to accommodate this request, strongly consider pulling your employee from the situation.

But be careful—you don’t want to penalize your employee by, say, removing her from a lucrative account. Speak to the employee about the various options before taking action. And if removing the employee from the account in question is the only viable solution, make sure the employee is compensated with a comparable replacement account, she says.

Depending on the seriousness of the harassment and the other company’s response to the complaint, you should also consider not doing business with that company anymore. That solution was the one the employer in Clarendon ultimately chose. But pursuing this option may be easier said than done. For example, if you have a contract with the other company, you may not be able to cancel it. So speak to your company’s lawyer if you think you need to pursue this option.

Conclusion

Even the least experienced of HR managers recognizes the importance of protecting employees against sexual harassment in the workplace. But what some fail to realize is that the “workplace” isn’t about bricks and mortar. It’s about the interaction of individuals bound by a professional or working relationship and a common employer. To the extent that your sexual harassment policy treats “workplace” as a literal term, it’s not doing enough to protect employees from  harassment and your company from liability.

WHAT THE LAW SAYS

The Duty to Protect Employees against Off-Site Harassment

The human rights laws and regulations don’t spell out an express duty to protect employees from offsite harassment. The existence of this duty has been implied by courts in discrimination cases filed by employees who were the victims of harassment while working away from the employer’s premises.

Example: A woman signed a contract with the Canadian Space Agency (CSA) to work on an isolation study being conducted in Moscow. While in Russia, the employee was sexually harassed by a Russian colleague, who was in charge of the study. She complained to the CSA. But it took no action. When the harassment continued, she filed a complaint against the CSA for failing to protect her from sexual harassment in the workplace. The CSA denied responsibility, arguing that it had no control over the workplace where the harassment occurred, or over the Russian colleague she accused of committing it.

But a federal court in Québec disagreed. It said that the Human Rights Act bars discrimination “in the course of employment” or “in matters related to employment.”  The employee was in Russia performing work on behalf of the CSA. So although the CSA didn’t have control over the Russian colleague, it did have a duty to protect the employee from sexual harassment in the workplace—“irrespective of its source,” the court reasoned. So the CSA should have taken action once it was informed of the employee’s harassment complaints [Canada v. Lapierre, [2004] F.C.J. No. 740, April 6, 2004].

Finally, keep in mind that in some provinces, including Québec, Ontario and Manitoba, the occupational health and safety law specifically includes harassment as a workplace hazard from which employers must protect their employees. Like other OHS law obligations, this requirement may apply not just at the workplace but in other places where employees carry out their work-related duties.