After #MeToo, Now What?: Victims' rights, procedural fairness, and reputational risk
In the wake of the #MeToo movement, complaints of workplace harassment have continued to rise in number while generating unwanted publicity for businesses and other organizations. In this climate, when faced with harassment allegations against an employee, many employers may be tempted to protect their reputations by firing first and asking questions later. However, acting too hastily may result in employer liability and improperly deny fairness to both complainants and respondents. In this session, experts will provide guidance on how employers and unions can effectively address workplace harassment with due regard to protecting victims' rights, upholding procedural fairness, and managing reputational risk.
- Responding to a complaint: What steps must an employer take once it becomes aware of an allegation of workplace harassment to comply with its legal obligations under provincial and federal legislation? If it receives a credible complaint, must an employer conduct an investigation before disciplining or discharging an employee who has been accused of harassment?
- Conducting a fair investigation: What does procedural fairness require in the context of a harassment investigation? Are employees accused of harassment entitled to know the allegations against them? What interim measures may be considered by the employer or requested by the union while the investigation is ongoing? Is it appropriate for the employer to reassign the respondent or place the respondent on leave pending the outcome of an investigation?
- Taking action after an investigation: If there has been a finding of harassment, can an employer rely solely on the investigation report as the basis for discipline? What factors should employers consider prior to taking disciplinary action? Is discipline always the best response to harassment? What measures should an employer take when an allegation is not substantiated?
- The role of the union: What is the role of the union in an investigation? Do employees being interviewed during an investigation have the right to union representation? What steps can the union take to protect the rights of a complainant or respondent? How can the union meet its duty of fair representation if both the complainant and respondent are union members?
- External considerations: How should employers and unions respond if a complaint of harassment becomes public? What are best practices for handling an investigation that has attracted public attention? What steps can employers take to minimize reputational damage resulting from a harassment complaint or investigation?