This guideline must be read in conjunction with the City's Human Rights and Anti-Harassment/Discrimination Policy (HRAP), and corresponding Complaint Procedures. This document is an appendix to the Manager's Guide to Addressing Employee Harassment and Discrimination Complaints & Incidents (the link is only available internally)
The term 'Management' refers to all individuals with supervisory roles
The City's Human Rights and Anti-Harassment/Discrimination Policy (HRAP) sets out the obligations and rights of all employees, including specific management obligations with respect to harassment and discrimination in the workplace. The Complaint Procedures set out the process in which employees and service/facility users can exercise their rights under the HRAP, while these Guidelines highlight key information with respect to management's obligations when responding to harassment/discrimination in the workplace.
The Manager's Guide to Addressing Employee Harassment and Discrimination Complaints & Incidents (the link is only available internally) provides extensive information to assist managers in fulfilling their policy and legislated obligations and provides guidance on all steps required to appropriately address employee issues of discrimination and/or harassment under the HRAP, including relevant templates and forms. Management must adhere to the steps identified in the Manager's Guide to Addressing Employee Harassment/Discrimination Complaints & Incidents when addressing employee complaints and incidents of harassment and discrimination.
Legislative and Policy Requirements
The Ontario Human Rights Code (Code) and Occupational Health and Safety Act (OHSA) create various requirements that managers must abide by with respect to protecting employees from harassment and discrimination in the workplace. The HRAP, Complaint Procedures and Guidelines encompass these legal requirements.
Managers must investigate incidents and complaints, which if taken as true, would amount to workplace harassment or workplace sexual harassment (including harassment based on sex, gender identity/expression and sexual orientation).
Managers may be required to investigate complaints related to other forms of Code-based harassment or discrimination, but may review other Alternative Dispute Resolution (ADR) options with the Human Rights Office (HRO)
An incident is an occurrence that management ought to have known was inappropriate and may amount to a breach of the HRAP regardless of whether a complaint was received. This requirement means that an incident may need to be investigated no matter how a manager becomes aware of harassment in the workplace. Management must complete the Assessment Form to document all incidents and steps taken by management to assess/respond to incidents.
A complaint is a written or verbal report by a complainant alleging that they have experienced or witnessed harassment/discrimination contrary to the HRAP. The Complaint Form should be completed by employees, however refusal to complete does not preclude an investigation from being required.
In accordance with legislative and policy requirements management must:
- Be familiar with the HRAP and understand the various forms of harassment/discrimination and the obligations that arise from incidents and complaints.
- Document and assess (triage) all incidents and complaints of harassment/discrimination. Management must use the Complaint and Assessment Forms when addressing harassment/discrimination in the workplace.
- Recognize and investigate all incidents and complaints of "workplace harassment" and "workplace sexual harassment". Human Rights Office (HRO) should be contacted where workplace sexual harassment is alleged.
- Address all complaints of Code-based harassment and Code-based discrimination, managers must contact the HRO for assistance with all Code-based employee complaints.
- Ensure investigations are timely, fair, unbiased, and appropriate in the circumstances.
- Maintain confidentiality and not disclose identifying information except in accordance with the Complaint Procedures.
- Provide investigation results in writing to parties as well as details of corrective action/implementation of remedies. The HRO must be copied in this results letter; consult Human Resources where corrective action is being considered.
- Ensure staff receive instruction on the legislative changes and updates to the City's human rights policies and procedures on an annual basis.
Internal Complaint Avenues
There are a number of internal complaint avenues available to employees, see the Complaint Procedures for further information.
Employees should be provided with various appropriate options when raising a complaint, and cannot be required to make a complaint to a manager who is implicated in the harassment-discrimination complaint.
Employees are encouraged to attempt to resolve issues themselves with the other person where appropriate. However if management becomes aware of an incident/complaint that could amount to a breach of the HRAP, management has an obligation to respond
If unable/inappropriate to resolve, employees should contact their supervisor/manager and complete an Employee Complaint Form providing sufficient detail for managers to assess the complaint (triage).
Employees may also contact the HRO to file a complaint and receive confidential advice. Depending on the circumstances, the HRO may assume carriage of the investigation or refer the complaint back to management
Once a complaint has been received, or management becomes aware of an incident that if true, would amount to harassment or discrimination contrary to the HRAP, management (or the HRO) is required to respond to the complaint, and determine what resolution mechanism is appropriate.
If an employee is unsatisfied with the outcome of a harassment or discrimination complaint/investigation, they may contact the HRO who may intervene where there is evidence management failed to meet policy obligations, or where it is determined that an HRO investigation is required.
Human Rights Office
The Human Rights Office (HRO) provides confidential advice to employees and management. The HRO may assume carriage of an investigation where appropriate.
Management must contact the HRO in the following circumstances:
- all formal complaints must be referred to the HRO under section 10 of the Complaint Procedures.
- all Code-based complaints
- where the situation warrants an investigation by an impartial third party or requires a level of expertise that is beyond the division’s capacity.
Management should contact the HRO for support when:
- assessing a harassment/discrimination incident or complaint and it is unclear whether the allegations would amount to a breach of the HRAP.
- where there is information of a more serious HRAP violation
- there are circumstances to suggest the HRO should conduct the investigation as a neutral party.
Employees and Management can consult the HRO at any stage in the process for confidential advice and to confirm if policy obligations are being met.
External Complaint Avenues
Employees may use external processes to resolve their complaint at any time, or if unsatisfied with the response by management or the HRO.
- Management should contact Legal Services on receipt of a Notice of an Application from the Human Rights Tribunal of Ontario.
- Management should contact Employee & Labour Relations (ELR) if a grievance is filed.
- Employees alleging workplace harassment may contact the Ministry Of Labour (MOL) whose inspectors can order an investigation at the division's expense. Management should contact the HRO if an MOL order/requirement is issued.
Required Steps for Employee Harassment/Discrimination Complaint or Incidents
- Meet with complainant and provide the Complaint Form (see Appendix 5 of the Manager's Guide) or use the Assessment Form (see Appendix 6) for incidents. Determine if interim measures such as separating the parties is required.
Triage allegations using the Assessment Form.
- If no investigation is required: inform the complainant and document in the Assessment Form.
- If possible Code-based harassment, consult HRO, resolve through ADR or investigate.
- If possible Code-based discrimination, consult HRO, resolve through ADR or investigate.
- Investigation required: If possible workplace harassment or workplace sexual harassment, investigate as ADR is not available as a first step. HRO must be contacted where allegations may amount to workplace sexual harassment.
- Investigate the Complaint/Incident: Assess who is the appropriate investigator. Meet with complainant, respondent and relevant witnesses as appropriate. Obtain and review documentary evidence. Document steps on the Assessment Form.
- Determine if allegations are substantiated and if there is a breach of the HRAP.
- Provide Results Letter to parties. If findings made, provide outcome information including corrective action while maintaining confidentiality. Copy HRO.
- Maintain records of all investigation documents for 7 years in a secure location separate from employee files (except for disciplinary letters).
Resolving Harassment/Discrimination Complaints
Managers can use the conclusion of the investigation process to resolve concerns, restore the workplace, and address broader issues that may have contributed to the complaint. Follow up with parties where appropriate to ensure issues have been resolved. Monitor workplace for behaviours that could escalate to harassment/discrimination. Review additional learning resources available through the HRO.
Human Rights Office: 416-392-8383, TTY 416-397-7332, or firstname.lastname@example.org
A/Director, Equity, Diversity and Human Rights
October 5, 2016