By Angela Leung, SHARP Workplaces Coordinator

This is the second article in our series on Workplace Sexual Harassment Investigations. If you haven’t had the chance to read our first article, check out the 5 Red Flags for Workplace Sexual Harassment Investigation.

Workplace bullying and harassment, including sexual harassment, is hard to address. For workplace sexual harassment, workers often must consider the fear of not being believed, worries about being seen as a troublemaker, in addition to the stigma attached to sexual harassment. Harassment can take significant mental and emotional toll on the worker. When a worker reports the harassment, it’s important that they know that the complaint will be taken seriously and that a fair investigation will be conducted. Sadly, this is not always the case. A bad workplace investigation can cause a lot of emotional/psychological harm to the worker and wear down employee’s trust in the employer. Here are another 5 signs that your workplace investigation may not be done right.

1. You are told your alleged harasser did not intend to sexually harass you – Workplace sexual harassment is:

    • Conduct of a sexual nature;
    • The conduct is unwelcomed by the person experiencing it; and
    • There are negative impacts on the person experiencing the unwelcomed sexual conduct.

(See our previous blog The Who’s Who of Workplace Sexual Harassment to learn more about what behaviour may be sexual harassment)

It does not matter if the harasser meant to cause harm.  The employer/investigator should not be dismissing a workplace sexual harassment complaint based on the alleged harasser’s lack of intention.

Comments such as “I know them, they would never do that” and “You probably misunderstood what they said” are red flags that your complaint may not be taken seriously.

2. The investigator tries to minimize the responsibility of the employer – The investigation should be about fact-finding. The investigator should not draw conclusions about the incident while the investigation is still ongoing. This includes placing or minimizing blame or responsibility for the harassment. While the investigator works for the employer, they should not be siding with any parties and should not be trying to minimize the employer’s responsibility. Some examples of this include:

    • Saying that nobody (especially the employer) could have prevented or known about the harassment;
    • Suggesting that if the harassment was reported earlier, the employer would have done something to stop the harassment from continuing; or
    • Complimenting the employer’s action since the complaint was filed.

3. Other staff become aware of your complaint – Your confidentiality is essential to any workplace investigation. If staff who are not involved in the investigation become aware of your complaint, it may be that your confidentiality has not been protected. When you raise concerns about confidentiality with the employer, they should take it seriously. If they don’t, it’s a red flag.

4. Not following policy – Your employer has a policy for harassment and bullying, or sexual harassment, which sets out the steps for handling complaints. If the investigation is not following the steps in the policy, it might not be fair.

5. You are not provided information –You are not provided information about what to expect, what information will be shared with participants of the investigation (the employer does not have to share all information), and when.

All parties involved in a complaint should know what the investigation process is and be told the outcome of the investigation. You should also be aware of a rough timeline for each part of the investigation and when it is expected to conclude.

This list is not a list of all possible red flags for a workplace sexual harassment investigation. To see our first list of 5 red flags for a workplace sexual harassment investigation, click here. If you are feeling uneasy during your workplace investigation, contact SHARP Workplaces Legal Advice Clinic to see how we can help. If you’re an employer concerned about the quality of your workplace investigation, SHARP Workplaces, in partnership with Ending Violence Association of BC (EVA BC) offers free training sessions, facilitated by trauma-informed EVA BC staff and CLAS lawyers, for non-profit organizations, and small businesses. Find out more about the free training available at https://sharpworkplaces.org/training/.

Photo by Kenny Eliason on Unsplash

NOTICE: SHARP Workplaces Legal Advice Clinic ceased providing legal services in March 2024 due to an end of funding, and is NOW CLOSED. 

If you experienced sexual assault and need legal advice  contact Stand Informed legal advice services.