"Who me? Couldn't be."

Despite the fact that workplace harassment is illegal, it still occurs in law firms across the province and, when it does, it can raise unique challenges in our profession.

Historically, "harassment" has been viewed as a human rights issue. However, in 2009, harassment became an occupational health and safety issue with the introduction of Bill 168[1]. The Ontario government introduced Bill 168, which amended the Occupational Health and Safety Act ("OHSA"), to make workplace harassment and workplace violence a health and safety issue. More recently, Bill 132[2] took this requirement even further by amending the OHSA to address the issue of sexual harassment as a health and safety concern.

What does it all mean? Or, what should it all mean?

The days of calling assistants "honey" or "sweetie" or "my girl" are over.  The days of yelling at juniors are over.  The days of belittling students when they miss the boat on an assignment are over.  The days of asking associates to "take one for the team" to keep a client happy are over. Or, at least, they should be. 

Workplace harassment and workplace sexual harassment are very broadly defined under the OHSA:

Workplace harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or workplace sexual harassment.

Workplace sexual harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

In addition to being a human rights and health and safety issue, harassment is also addressed in our Rules of Professional Conduct and the Paralegal Rules of Conduct.  Our rules specifically state: "A lawyer shall not sexually harass a colleague, a staff member, a client, or any other person."  The Paralegal Rules of Conduct specifically state: "A paralegal shall not engage in sexual or other forms of harassment of a colleague, a staff member, a client or any other person on the ground of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability."

Without making this an article about the rules of professional conduct, I would be remiss if I did not remind the profession that the Law Society provides Discrimination and Harassment Counsel services free-of-charge to the Ontario public, lawyers and paralegals. As stated on the Discrimination and Harassment Counsel's website, part of its mandate is to help stop discrimination and harassment in the profession.

Harassment can result from one incident or a series of incidents. The most common types of workplace harassment seem to fall into three categories: (i) sexual harassment, (ii) racial/ethnic harassment and (ii) bullying. 

Based on my experience in advising law firms on these issues, I would say that sexual harassment and bullying are the most common types of harassment in private practice. Below are some examples:

So what?

Under the OHSA, your firm, as an employer in Ontario, is required to have the following in place with respect to harassment:

• harassment prevention policy
• a program to implement your harassment prevention policy
• training with respect to your program and harassment prevention policy

For larger firms with designated HR representatives who are somewhat removed from the practice of law, addressing the issue of harassment in the workplace might come a little easier than addressing the issue within a small to mid-size firm where HR issues are handled by partners of the firm or the office manager.  Just because the issue is a difficult one, it is not one that should be left unaddressed nor should it be dealt with in an ad hoc manner.

Tips to Address Complaints of Harassment

Below are some tips to ensure your firm is compliant with the applicable legislation and to ensure that the complaint and investigation process works effectively, particularly for small to mid-size firms where the HR function is performed by partners or the office manager.

1. Have a detailed anti-harassment policy and program in place and follow it to a tee each and every time.  Not only does the OHSA require you to have a policy and program in place, but the more detailed your policy is, the easier it will be to administer.  Make sure your policy is signed off by the managing partner of your firm.  This shows your staff, students and associates that your firm takes this issue seriously and that your policy has the full support of management and the partnership, as the case may be.
    
2. Your policy must include:
3. Measures and procedures for your team to report incidents of workplace harassment.  Notably, it is important to make sure your policy provides a procedure in the event the alleged harasser is the person to whom you would otherwise be reporting.  I would suggest forming a committee or designating at least two people to address complaints. 
4. Set out in very clear terms how complaints of workplace harassment will be investigated.  To make your policy easy to administer, set out each step that will occur in the process.  For example:

At the outset of all of these interviews, it is crucial that the investigator communicate to those involved that the process is confidential and that information will only be shared with those who are involved in the complaint and investigation process or as required by law or to implement a penalty.

Isn't there an easier way out?

Not really. As I mentioned above, dealing with complaints of harassment, particularly in small to mid-size firms, can be a real challenge, especially when the complaints are against senior partners or top billers. 

Where it is impractical or not desirable for the investigation to be conducted internally, there is a solution available. Outsource the investigation. There are a number of employment lawyers and HR professionals who can come to your firm and conduct the investigation for you. Let them. If you go that route, provide your external investigator with a copy of your policy and ask him/her to follow the steps set out in your policy. Your investigator will ultimately provide you with a report of his/her findings and you can go from there. If appropriate, you can ask the investigator to recommend a penalty. 

If a finding of harassment is made, make sure the punishment fits the crime and address it head on.  If you are not sure what the penalty should be, take advice on the issue.  Do not guess.  If you get it wrong, it can be costly.  In the end, make sure the complainant is satisfied with the investigation and the outcome and be mindful of repeat behaviour.

My best advice on the issue of harassment is to address the issue pro-actively within your organization.  Not only is it the right thing to do, but it can save you a significant amount of time and money (and dare I say it …. maybe even reputational damage).  If your firm does not address this important issue internally, victims of harassment have a number of outlets available to them to have the issue addressed by a third party.  They can proceed by way of filing a human rights application; they can make a complaint under the OHSA and cause an investigation to be conducted at the expense of the firm; they can make a claim for constructive dismissal with the Superior Court; or, they can file a complaint with the Law Society.  The point is this: if your firm does not address the issue appropriately, someone else will do it for you and you probably will not like it.  Take control of the issue and your own process for resolution. 

Harassment is a serious issue and should be addressed as such, especially by those of us who are tasked with upholding the rule of law.