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9 CANADIANLAWYERMAG.COM/INHOUSE JULY 2016 Workplace Solutions By Lorenzo Lisi R ecent high-profi le sexual harassment cases demonstrate the devastating impact on in- dividual employees, as well as the fallout to an organization when a culture of harass- ment is permitted to exist. We all agree that legislation designed to eradicate harassment in the workplace and protect employees should be imple- mented without delay. What is unclear is how this additional legislative pro- tection will, in practice, impact the workplace. From an employer's perspective, while no organization would question the importance of ensuring a harassment-free workplace, the additional obligations and powers that may come with increasing legal obligations, not to mention potential fi nancial and human resources costs, raise a host of concerns. In Ontario, Bill 132, also known as the Sexual Vio- lence and Harassment Action Plan Act, will come into effect in September, signalling a continued and aggres- sive legislative response to the problem of workplace harassment. The legislation broadens the defi nition of workplace harassment to include "sexual harassment" and expands the obligations on employers with respect to workplace harassment policies. Employers are re- quired to review and update their written policies and/ or programs to ensure that they deal with how inves- tigations and privacy concerns will be balanced. Re- quirements include: how information about an alleged incident is to be obtained (including information about any individuals involved); when and how any informa- tion will be disclosed; how the worker and the alleged harasser (if the latter is a worker of the employer) will be informed of the results of the investigation; any cor- rective action that has been or will be taken; and the inclusion of measures for the reporting of harassment where the individual designated by the employer for the reporting of the harassment is the alleged harasser. Perhaps of greatest interest is the power Bill 132 pro- vides to inspectors with respect to investigations. They can order an employer to retain an impartial third-party investigator, at the employer's expense, to conduct an Lorenzo Lisi is a partner at Aird & Berlis LLP. investigation into a complaint of workplace harassment. Investigations are often critical in determining whether an allegation of harassment can be sustained. They provide an impartial third-party review and in- quiry of the circumstances involved in an allegation of harassment and, depending on the nature of the re- tainer, a summary of factual and/or legal conclusions. However, the obligation to provide an investigation in most if not every case raises real practical concerns, such as cost, timing, and the impact on other employ- ees. The precise threshold required for a formal inves- tigation is unknown and employers may feel a signifi - cant human resource strain. What is clear is that for both employers and employ- ees, the stakes have never been higher. Failure can re- sult in a workforce that may lose faith in the employer's ability to provide a harassment-free working environ- ment, which leads to poor morale, higher absenteeism, and employee disengagement. For employers, there is the possible legal liability of an improper or insuffi cient investigation and the litigation it may create. The best approach is to be proactive, ensure compli- ance, and implement a process that is fair, responsive, and will assist in protecting against frivolous claims and charges. Time will tell how the courts and admin- istrative tribunals judge employers' efforts in this area, but in the meantime, here are some helpful tips: • Be compliant: Review and implement any legislative requirements. Assess risk for all forms of harassment, violence, and domestic violence in the workplace; • Improve/develop a policy: Address each risk and how it will be dealt with while respecting the privacy rights of all employees involved. Bring in the joint health and safety committee, supervisors, and experts if necessary; • Develop an action plan to address the process for the investigation of complaints, the assessment of risks, and consequences of non-compliance; • Understand the investigation process: The risk of conducting a fl awed or improper investigation is con- siderable. In Ontario, an offi cer may order an investi- gation based on his or her review of the circumstanc- es. Where appropriate, this may mean a third-party investigator at additional cost; • Don't pre-judge: Consider the evidence carefully. Don't assume. Make rational decisions based on available information and evidence. • Be compassionate: Allegations of harassment/vio- lence are diffi cult to make and can be devastating on both the victim and the alleged harasser. IH Workplace harassment and corporate obligations New legislation in Ontario broadens definition and expands obligations of employers.

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