Sexual Violence and Harassment: Why we must update the out-dated

While employed as a police officer, there was a period of time when I worked as the Professional Standards Officer (PSO).
Like the name suggests, it meant that I was responsible for upholding standards. My job was to investigate complaints against police officers within my municipal police agency filed by members of the public, and look into issues that had been raised internally within the organization.
At the time when I held this position, there was a newly created independent oversight authority in British Columbia called the Office of the Police Complaints Commissioner (OPCC).
This office oversaw each of the public complaint investigations throughout their journey, as well as reviewing the results of the internal investigations once they had been completed.
And it was a good thing.
Let me explain a little more. At the time, this type of oversight was very new to the world of Professional Standards and policing as a whole. It had been implemented in order to increase a sense of trust that the investigative process was being handled professionally and in a timely manner- something that the public as a whole, the complainant, as well as the police officer involved, was grateful for.
Now, the existence of this office, as well as the presence of additional oversight bodies, is what ‘normal’ looks like for the profession of policing across the country.
And that is a very good thing.
In fact, any industry wanting to be considered a ‘profession’ should have an oversight body in place so that the trust in the service being provided is as transparent as possible.
For further reading, the current work of the OPCC (for municipal police agencies in British Columbia) can be found here:
One of the biggest questions that members of the public had (and one which the OPCC’s presence was designed to satisfy), was whether the investigations that were being conducted during the complaint process were being done in an ethical, professional, impartial, and objective manner.
This was partly due to the fact that some previous investigations had been found wanting, which triggered the need for the creation of the OPCC in the first place.

So, why do I share this with you? I have an interesting reason, I promise.

As of September 8th 2016, Bill 132, or the Sexual Violence and Harassment Action Plan Act (which strengthened laws against sexual violence and harassment in workplaces, on campuses, in housing, and through the civil-claims process), took effect in Ontario.
The Bill amends the Occupational Health and Safety Act by broadening the definition of workplace harassment to include sexual harassment.
It also introduces a wide range of new employer obligations relating to:

  • developing a written program to implement a workplace harassment policy
  • investigating incidents and complaints of harassment
  • empowering labour ministry inspectors to order qualified third parties to investigate harassment complaints and provide written reports

And I should add that these are all at the employer’s expense.
So now that Bill 132 has expanded the definition of workplace harassment to include sexual harassment, you may be wondering what exactly is considered “sexual harassment.”
Well, it’s now defined as: “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome,” or “making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.”
One additional requirement brought about by Bill 132 is that there needs to be an investigation into workplace harassment complaints or incidents, which, perhaps surprisingly, is currently not prescribed in Bill 168, An Act to Amend the Occupational Health and Safety Act with Respect to Violence and Harassment in the Workplace.
This effectively means that within the employer’s Action Plan, there must be an explicit description of how the investigation process is going to be conducted.
Furthermore, when the investigation has been conducted, they must, in writing (respecting a lot of confidentiality, of course), report to the workers what is going to happen as a result of the investigation.

What else will change?

One extremely profound difference in how harassment is going to be dealt with in Ontario workplaces, is the provision of a tremendous amount of oversight, if not involvement, of the Ministry of Labour.
Here is an example of why this is imperative. In the case of Chuvsalo v. Toronto Police Services Board 2010, the tribunal arbitrator stated:
“The issue before me is not, at the end of the day, the applicant’s harassment complaint… ought to have been forwarded to a disciplinary proceeding, but whether the investigation into those complaints was flawed,” the decision stated.
“The officer who conducted the investigation had little understanding of the issues of harassment as was evident in his failure to recognize critical evidence and his insistence on the need for corroborating evidence. This faulty analytical framework placed an unnecessary burden on the applicant when she attempted to have the Toronto Police Services Board deal with her complaint of harassment.”
There are several other cases in Canada where the employer did not seriously examine the merits of a complaint that it received from a worker and they ended up becoming one of ‘those cases‘ that was cited by future legal representatives in hearings.
In fact, a recent case from the United States highlights just how seriously the issue of a prompt and professional response is when looking at the issue of sexual harassment complaints:
The case involved a complaint filed by Emma Gyulakian against a car dealership (Lexus of Watertown) in Massachusetts.
Gyulakian alleged that her supervisor sexually harassed her repeatedly and that the company made very little attempt to investigate the claims.
At the end of the hearing it was determined that the conduct of Lexus was egregious, but no one really did anything about it until after she was let go.
When Lexus did the investigation, all they did was talk to one person. They didn’t take it seriously.

So, what is the lesson here for all of us?

Well, in my mind, it’s simple:
Some employers still don’t take complaints seriously.
And when they are forced into conducting an investigation (perhaps just to play lip-service so they can then say that at least they are doing an investigation), the investigation is not conducted by anyone with training, skill, or experience in the role.
Hence the fact that Ontario now has an oversight position on harassment complaint investigations.
I feel (and hope), that this going to become the new normal in order to develop and maintain trust and faith in the process.
And yes, it is a good thing.

Sonar Leadership March 01, 2017

Our workplaces have changed, with new rules and new languages. Stay up-to-date with SONAR Leadership Training!


About the Author:

Phil Eastwood is a former London Bobby who brings a thirty-five year career in policing to his role as Senior Partner of Fiore Group Training, a recognized leader in training top North American organizations. Phil is lead author of workplace training courses in respectful workplace training, workplace violence employee training, and leadership training seminars.

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