Don’t confuse nitpicking or snubbing with harassment
By Howard Levitt
Original Source: National Post
It’s true, allegations of harassment are hurled far too quickly these days over behaviour they consider objectionable, and which has no legal remedy. Even when harassment complaints are valid, employees must prove harassment occurred and face an uphill battle in their lawsuits, often missing opportunities to gather evidence and lay the groundwork before putting the process in motion.
The following points will help determine whether you have a valid harassment complaint, steps to take to increase the likelihood of your employer addressing it and ways to strengthen any lawsuit:
Do you have a valid claim?
Too often, a complaint concerns nitpicking about tardiness for being “only 3 minutes late,” a manager’s tone of voice, being miffed about a colleague’s failure to say hello or similarly trivial conflicts than of unlawful harassment.
If an employee recounts being yelled at, called an idiot, asked what sexual position he or she prefers, is questioned about retirement or is physically attacked, these constitute harassment.
By legal definition, harassment is a course of comment or conduct that ought reasonably to be known by the perpetrator to be unwelcome. To be protected by human rights legislation, the comment or conduct must also relate to a defined protected characteristic such as sex, skin colour, disability or age.
Your manager is entitled to ask you to be on time, perform your duties, and follow up with you repeatedly if you don’t and discipline, even fire you, if necessary. Eye rolling, sharp tones and being ignored by colleagues and/or managers can be unlawful, but only if it is repeated and rises to a certain objectively provable and material level. One off, or even a few, incidents likely won’t attract liability.
If you are being obviously snubbed or systemically mistreated in minor ways by a colleague or manager, you should bring it to the attention of human resources or a more senior manager so the conduct can be addressed.
While keenly felt, this type of conduct is often hard to prove and difficult for employers to correct. Your employer cannot force colleagues to be kind or micromanage their every communication. Often, the best course of action is to rise above it or consider changing your workplace.
Blatant insults, discrimination and unwanted touching are unlawful harassment and your employer has a duty to investigate and take steps to address these. Failure to do so makes them liable for damages that could include mental distress and/or a termination package if, as a result of the harassment, the employment relationship has become untenable.
Make a record
If you still feel you have a potential harassment claim, make a record of the conduct while it’s fresh in your memory. Only contemporaneous notes are admissible at a hearing.
If it’s verbal or other non-written conduct, write down what occurred in the exact words used, what time it occurred and who, if anyone, might have heard or seen the incident. Date your notes. This can be used as evidence.
In addition, if you plan to address the conduct directly with your harasser, you could send an email describing the conduct. If they don’t deny it in response, this could be deemed to be an admission that the conduct occurred, even if they subsequently justify or excuse it.
If the harassment is ongoing, you may wish to make an audio or video recording. However, doing so could be considered a breach of trust essential to the employment relationship. You should seek legal advice before doing this.
When making a complaint of harassment to your employer, be as specific and detailed as possible.
Some clients said they complained only of rudeness because they did not wish to repeat a racist or sexist remark. Without being given such details, the employer cannot understand the seriousness of the conduct.
Providing detail lends credibility to the complaint. Consider the impact of this complaint “At 12:15 p.m., Mark came into the room, put his coffee cup down and said ‘Amy, you’re wearing that sexy skirt again’”compared with “Mark is making sexual comments toward me.”
Specifics allow the employer to more thoroughly investigate your complaint and uncover corroborating information.
If your employer does not investigate or satisfactorily address your complaint, you may have a claim for damages and should seek legal advice.
Such investigations should be internal, particularly where employers have an employee trained and certified as a workplace investigator. The need for investigations legally has become more chronic and it makes little sense to pay for expensive outside counsel when you can perform it inhouse with employees who better understand the personnel and the context.