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Harassment Investigation Considerations For Hybrid And Remote Workplaces – Discrimination, Disability & Sexual Harassment



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Workplace bullying and harassment complaints have to be
investigated in a manner that is reasonable in the
circumstances.  This is a long-established workplace legal
principle.  But what happens to a long-established legal
principle when the workplace itself is not long established?

In this article we will look at some developments in how
bullying and harassment complaints arise and ought to be
investigated in a new era of work:

1. Developments in Harassment Itself

Monitoring for harassment online is not exactly a new
development, but working from home during a pandemic when tensions
may be higher than normal has certainly given employers a reason to
be more diligent about workplace harassment that does not occur in
person.  Further, new communication tools like Teams and Zoom
have given workers a way to stay in communication, but also a new
setting in which harassment can occur.  In this day and age,
workers are also more sensitive to and aware of incidents, like the
use of microaggressions, that could legitimately ground harassment
complaints. 

2. What Do Employers Need to Know about Microaggressions?

We are of course getting more and more requests from clients for
advice on how to deal with complaints of microaggressions.
Generally speaking, a microaggression can be considered a
commonplace or somewhat casual verbal, behavioural, or
environmental slight or indignity, whether intentional or
unintentional, that communicates hostile, derogatory, or negative
attitudes toward stigmatized or culturally marginalized
groups.  Microaggressions convey stereotypes, negative traits,
or general insensitivity or disrespect.  Examples may include:
interrupting or talking over a person speaking, questioning the
expertise or competency of a woman/racial/gender minority on a
topic in which they are knowledgeable, not respecting a
person’s preferred pronouns.

Always keep in mind that in Ontario, workplace harassment has a
statutory definition.  It is “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.” 
Workplace harassment does not need to be intentional, but a single
incident will only constitute workplace harassment if it is
significantly serious.  A single microaggression likely will
not constitute workplace harassment.  But when
microaggressions go unchecked, they can accumulate and have a
“macro” effect on the recipient.  This could
certainly result in a finding of workplace harassment.

3. Management’s Response to Harassment and Bullying is the
Same…Just Different

Just as in person, diligently taking active steps to address
online harassment is important.  This may be more difficult
when work is done remotely.  Employers will be held to a
reasonable standard, but organizations should know what to look for
and how to act if harassment is either noticed or
reported. 

In most cases, an employee will report a complaint to
management.  Management should properly gather information and
investigate the complaint as appropriate in the
circumstances.  The potential “bully” ought to be
made aware of the substance of the complaint and given an
opportunity to respond.  The conduct complained of may have a
reasonable explanation – such as if technical issues made it
that the worker did not know who they were addressing and so they
used the wrong titles or pronouns.  Or they may have been
unintentionally microaggressive toward a colleague, and with some
notice, are able to satisfactorily correct their conduct.

Whether in person or online, the same basic principles of
diligence and procedural fairness apply.

4. How is an Employer Supposed to Investigate in a Hybrid or
Remote Workplace?

The law requires that a workplace investigation be conducted in
a manner reasonable in the circumstances.  Sometimes a phone
conversation with both parties to a complaint will be sufficient to
satisfy this onus.  In other situations, a full and formal
investigation through an independent third party is required. 
Hybrid and remote workplaces require a flexible and considered
approach to workplace investigations.

Personally, I prefer conducting workplace investigations through
in-person interviews.  In-person communication tends to be
clearest.  Sometimes an interviewee’s body language that
is most noticeable in-person helps guide the discussion.  But
in-person meetings are not always possible.  An investigation
can be conducted through phone calls or videoconference meetings,
or a combination of methods where appropriate.  An
investigator will likely be gathering documents to assist their
analysis.  Witnesses can provide photos, text messages,
emails, even videos and audio recordings, electronically. 
Their narrative may simply assist in the review of tangible
evidence. 

But for any interviews being conducted remotely, an investigator
needs to take extra care to ensure that they are properly recording
the substance of the interviewee’s information.  We have
to take our time, ask clarifying questions, and have the
interviewee repeat themselves.  I have also, on occasion,
recorded the video or audio of an interview, with the
interviewee’s knowledge, for the purpose of reviewing their
information while I draft the report.  If I am going to make a
recording, I make sure that I am clear about the purpose of the
recording, how it will be used, and when it will be deleted. 
I also prefer to have the interview participant acknowledge in
writing, via email, that they attended an interview at a particular
time and date, and provided truthful information to the best of
their ability.

Reliability and procedural fairness are always key to any
workplace harassment investigation, no matter whether it is
conducted remotely or in person.

On September 8, 2022 I will have the privilege of discussing
legal and practical developments in workplace bullying and
harassment in the office and virtually at 2022
Employment Law Masterclass Toronto
.  Registration
is open now.

Like so many other workplace issues, bullying, harassment, and
investigation are complicated and changing.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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