Q&A Series, Part 1: Harassment in the Workplace

Judy Hamilton has been with Friedmans LLP for more than 11 years. In addition to carrying a full case load, Judy is the head of the litigation department and responsible for delegating and assigning litigation files and tasks to lawyers and firm staff.

A significant part of Judy’s practice is dedicated to employment law, and related disputes. We spoke to Judy about employment law and workplace harassment.

Q: You often work on cases involving harassment in the workplace. Could you give an example of a type of case that you might handle?

A: In my practice, I work with both employees and employers to provide advice on the employment relationship in circumstances where that relationship has either ended or is problematic in some way. On the employee side, a client may call me because she has just been terminated, or she may feel extreme stress and anxiety in relation to the workplace. I will review the specifics of the situation with a view to assisting the potential client in understanding her legal rights and evaluating her options. We may discuss negotiating a return to work or bringing a proceeding against the employer. When I meet with an employer, she may have received a demand letter from a lawyer on behalf of a former employee who has resigned or been terminated, and that employer will require advice regarding how to respond to that demand and to discuss the best approach for responding to the former employee.

Q: When do you think is the right time to approach a lawyer after suspecting or experiencing harassment?

A: You are always encouraged to approach a lawyer as soon as possible if you have questions about how to handle a situation in the workplace. If you feel that you are in a conflict with someone at work or you feel that you are being bullied or harassed, the lawyer may instruct you to first engage with your employer’s human resource department. If there is a protocol in place for reporting harassment, you should follow those protocols and be responsive to information requests and allow the internal process to run its course and possibly resolve the problem. If you are not satisfied with the outcome, you should again seek a lawyer’s advice regarding your options. At any time, if there is a situation in your workplace that is so unbearable that you cannot contemplate returning to the workplace, you should immediately seek out legal advice about what to do next.

Q: What should employers consider when accused/involved in a harassment claim?

A: Employers need to take any complaints made by their employees seriously and investigate them objectively. It is recommended that the employer hire an outside third-party to investigate harassment claims, but that decision may sometimes depend on what resources the employer has available. First and foremost, there must be a process in place so that the employee knows where and how to make the complaint. That complaint should be investigated fairly without a predetermined outcome, and the employee should be informed of the results of the investigation. No employee should suffer repercussions or retaliation for bringing forward a complaint, even if it is not sustained after an investigation.

Q: What should employers expect when they first engage legal counsel on a harassment allegation? And what about employees?

A: The lawyer will gather information from the employer, including information about the company policies regarding harassment in the workplace, and will also ask questions with a view to understanding how the policies are generally implemented. The lawyer will want to know how this particular complaint came to the attention of the employer and how it was handled, and to understand the employer’s perspective and general response to the allegations. When being engaged by an employee, a lawyer will need background information regarding the position the employee holds, their annual income, their responsibilities, how the organization works, whether there is an employment contract, and a description of the harassment and the events surrounding it, including how the complaint was reported and how it was responded to. The employer and the employee will often have a very different understanding of what happened when harassment occurs in the workplace.

Q: In all the workplace harassment cases you’ve been involved with, is there a common feature that you’ve noticed?

A: Something I have noticed is that changes in ownership and/or upper management often lead to situations of conflict between new management and the existing employees. Existing employees may experience strong feelings of being marginalized for reasons other than their performance. They may have a stellar performance record and suddenly they feel they are being set up to look incompetent and fail at their jobs. This tension between the employees and the new supervisors can result in an overt and visible conflict witnessed by others or the employee can be demoralized slowly by micro-aggressions, both of which can result in serious psychological trauma. Harassment can range from overt hostility, discrimination and verbal harassment to silent treatment and isolation, such as being excluded from meetings that you’d previously attend, not being asked for input in your area of expertise, experiencing rude or inappropriate behavior, excessive or demeaning demands, being demoted to a lower-level position, or being transferred to a different department. Harassment can have a significant impact on an employee’s health and well-being, with negative impacts on both physical health, social life and work life.

Q: Workplace harassment seems quite prevalent right now. Why do you think instances of harassment are becoming so common? Is the #metoo movement spurring people to speak out? Or is there something else going on?

A: Workplace harassment and discrimination and workplace sexual harassment have always been around. Awareness of the problem has increased and a concerted effort has been made to address harassment in the workplace through legislative change. Although the Human Rights Code has offered certain protections from discrimination in the workplace since 1962, on a practical level, many employees from marginalized groups would endure harassment without complaint for fear of being fired. Harassed workers would often have no immediate recourse or ability to replace their income if they were fired or commenced a claim against their employer. Eventually workplace safety legislation was amended to specifically require every employer to take steps to keep the workplace free from harassment, including sexual harassment, and to not retaliate against those who complained. There is still a lot of work to be done to make the justice system more accessible to those who suffer from harassment, but there is certainly a greater understanding of the right of each worker to a safe environment when at work, which includes psychological safety. These legislative changes have forced employers to educate themselves about how to take complaints seriously, how to investigate them properly, and how to treat both the accuser and the accused fairly throughout the process.

Q: Are there any cases that you’ve worked on that could be inspiring to those that are skeptical about getting legal assistance regarding their own experience with workplace harassment?

A: I personally find it rewarding to help people understand what legal options they have after they have had a negative experience in the workplace. The law generally favours the worker in employment situations because they are the weaker bargaining party in the employment relationship. I try to resolve employment conflicts early on in the process, and I find that most clients appreciate a quick resolution of their employment matters after feeling helpless and overwhelmed with their situations, particularly after being wrongfully terminated from their jobs. I would encourage anyone who is skeptical to reach out to an employment lawyer in order to make an informed decision about the available options.

Q: Is there anything else you’d like to add about employment law disputes generally?

A: COVID-19 has had a devastating impact on the economy and the job market both for employers and employees. The necessary emergency legislation enacted to deal with the economic shutdown has brought about much uncertainty in employment law, particularly regarding lay-off and protected leave provisions. The interpretation of the emergency legislation has been inconsistent in the lower courts and is now currently before the Court of Appeal. Also, some recent case law from the Court of Appeal is calling into question the enforceability of many termination provisions in employment contracts. Because the law is changing, it is critical to be informed. The best scenario for both employer and employee is that they go into the employment relationship with their eyes open, with both sides understanding the rights and obligations of both parties, with a view to avoiding misunderstanding and conflict in the future. A straightforward employment contract can go a long way towards managing expectations about the employment relationship from the beginning. As employment lawyers, we are here to help guide you through that process.

Are you an employer or employee with questions about workplace harassment or any other employment dispute? If so, please contact Judy at jh@friedmans.ca (mailto:jh@friedmans.ca) to see how she and other Friedmans lawyers may be able to assist.

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.

Interview conducted by: Alexis Friedman