You are accused of workplace harassment. Now what?

What should you do? What should you say? How do you not make matters worse?

A practical and informative guide that you hope to never have to use

Employers are required by law to investigate complaints of workplace harassment. Regardless of whether the complaint has merit or not, knowing how these things usually work allows you to have an informed response. Here’s what to expect and how to respond if you’re accused of improper behaviour.

If the accusations are serious, or if you hold a high position in an organization, there is likely to be a formal investigation. This might be conducted by in-house legal counsel or by the Human Resources Department. In some cases, the employer decides to retain an external investigator.

While the investigation is in progress, you might be suspended from work or transferred to a different location in order to minimize your contact with the complainant. You may be told not to contact the complainant, or to communicate only as necessary for work. It is important to respect this request.

The usual procedure in an investigation of workplace harassment is to interview the complainant (the person who made the accusation), interview the respondent (the person accused of improper behaviour) and interview any witnesses. The investigator might also follow up later with additional questions, depending on the information revealed in the interviews. Depending on the nature of the accusations, the investigator might review documentation such as email or text messages.

You should receive a written copy of the complaint or a “Statement of Allegations” before the interview with the investigator, and you should be given at least a few days to review it. Come to the interview prepared to speak to the events described in the complaint or the Statement. The investigator will likely ask you to provide a list of witnesses, or of others who can speak to the allegations. Have the names ready, but do not contact these people yourself.

If you are a unionized employee, ask for your union representative to be present at any interview or meeting.

If you do not belong to a union, there is no automatic right to have a lawyer, representative, or support person present at the interview. Review your employer’s policies to see what is allowed. (Don’t be surprised if your employer refuses to allow third parties to be present during interviews.)

At this point you might be thinking, “Wait – do I need a lawyer?” I put this question to employment lawyer Peter Straszynski of Torkin Manes LLP. He said that if you’re concerned that your job or reputation might be at risk, consult a lawyer, and do so as early as possible in the process and before you make any responses or decisions. Peter told me that, “Waiting to get independent advice until after an investigation of workplace harassment is over and a decision has already been made affecting your livelihood may be too late.”

(If you do decide to get legal help, reach out to a lawyer who specializes in employment law.)

Cooperate with the investigation and answer questions to the best of your ability. It is within the investigator’s role to assess the credibility of the evidence that is provided. If you refuse to answer questions, or answer vaguely, the investigator might find your evidence to be not credible. For example, if you say that you “don’t remember” whether or not you attended a meeting, and there are six witnesses who say they saw you there, you could come over as evasive or untruthful.

I have spoken to some people who believe that the complaint against them will be dismissed because “it is her/his word against mine.” What they don’t always realize is that the standard of proof in workplace investigations is “balance of probabilities.” (We’re used to hearing the standard used in criminal matters, which is “beyond a reasonable doubt.” This high bar is not used in workplace harassment investigations.) The investigator has to decide whether or not it is more than 50% likely that the events described in the complaint occurred. What this means is that faced with two different accounts, the investigator will decide which of the two parties has provided the more credible evidence.

Workplace investigations are supposed to be confidential, for everyone’s protection and benefit. Don’t discuss the investigation with anyone at your workplace (except your union representative, if you have one.) Instead, talk to family or friends outside the workplace. If you’re not comfortable discussing this with friends, get some support elsewhere. If your employer has an Employee Assistance Program, this is a good time to take advantage.

Finally, if you’re asked to change your behaviour as a result of the investigation, take it seriously and get the support you need to make positive changes. Times have definitely changed, and some behaviour that used to be ignored or even condoned is no longer seen as acceptable. In the end, workplaces without harassment are in everyone’s best interest.

About the image: A sleeping Raccoon at the Point Pelee National Park, Leamington, ON. Photo by Deena Errampalli via Wikimedia Commons.

“Toxic” Workplaces and the “Poisoned Work Environment”

“This workplace is toxic!” There is no precise definition of a “toxic” workplace. Generally, when people tell me that their workplace is toxic, they mean that the workplace makes them feel bad in some way. They mean that they would rather not be there. A “poisoned workplace” is different.

  • A poisoned work environment can arise from a single, serious act of violence or harassment. Or it can arise from a pattern of less significant incidents. For example, a single sexist comment, taken in isolation, might be disrespectful, but it would probably not by itself make for a poisoned work environment. Yet a series of such comments, repeated over a long period, could well make for a poisoned workplace.

These are the factors that an investigator or adjudicator has to consider in determining whether a workplace has become poisoned:

The number of comments or incidents: The greater the number, the more likely that the result is a poisoned workplace.

The nature and seriousness of the comments or incidents: The worse the behaviour in question, the more likely it is contributing to a poisoned work environment.

The overall context: A single comment or action might not seem inappropriate when considered on its own. However the same behaviour, taken in the context of a series of comments or actions, could be considered part of a pattern of harassment. For example, a single comment about a co-worker’s appearance, while it might be inappropriate, would not make for a poisoned work environment. However daily comments about physical appearance, taken collectively, could well contribute to a poisoned work environment.

The final factor the Human Rights Tribunal adjudicator mentions is the hardest to understand: Have the offensive comments or actions become a “condition of employment”?

This sounds bizarre. No one is asked, during a job interview, if they would be willing to undergo harassment – so how could it possibly become a “condition of employment”?

In this particular case a female police officer described a pattern of sexually charged comments and unwanted actions. The adjudicator found it significant that some of the offensive comments were made by the officer’s direct supervisors. Other supervisors and colleagues, while they didn’t make comments themselves, condoned or minimized the harassment by laughing along, joking about it, or pretending it wasn’t happening. The consequence was that the officer had to “play along” with the unwanted behaviour for fear of suffering consequences, given difference in power between her and those who were condoning the behaviour. This is why the adjudicator found that the harassment constituted a condition of the applicant’s employment.

As part of the resolution process, the adjudicator ordered that the officers and supervisors have annual training in sexual harassment, human rights, and poisoned work environments. It is too late for the applicant in this case. Perhaps it will make a difference for those coming after her.

How I responded to a racist comment

Note: I originally sent this out as part of a newsletter. It got such a positive response that I decided to share it here as well.

As racist remarks go, this one was fairly mild.

I was driving in a car with an older family member. (I’m going to call him “Joe” for the purposes of this post.) Over the car radio came the news that “Uncle Ben’s” rice would be changing its name to “Ben’s Original” because of racist associations with the original name and logo design.  

Out of nowhere, Joe got really agitated. There was nothing wrong with the name “Uncle Ben’s,” he insisted. No one cared about the name. No one was asking for the name to be changed. I started to protest that, yes, actually, there was a lot of support to change the name. Growing more and more agitated, he answered that those people need to find better things to do than protest about names. And anyway, “giving in” to this kind of request is only “pouring oil on the fire.”

My first thought was, really? You don’t understand why the name “Uncle Ben’s” is racist?

And my second thought was, why do you care so much about how a multi-million dollar food company markets their products?

So while I was disturbed by Joe’s reaction I was also really perplexed by it. There was nothing in any of our previous conversations to hint at these views.

Now I faced a choice. I was also starting to get agitated. (And there was nowhere to go, I was a passenger in his car.) Do I avoid conflict by using one of the many “conflict avoidance” tactics I have mastered? I could easily remain silent, change the subject, or make some soothing remark about “agreeing to disagree.” Or do I continue this uncomfortable conversation and risk damaging my relationship with Joe? 

I made a quick calculation. I knew I was an important person in his life. I knew he would listen to me. More importantly, despite his bizarre and out-of-proportion reaction to the name change, I knew he was a good person and someone who tries to do the right thing.

And so I explained why I thought the name had to change. I told him about the racist history of whites calling black men “Uncle” to avoid using the honorific “Mr.” I said that the label design harked back to a time when black men could get only low-paying jobs, and that we didn’t need a visual reminder of those times.  

Gradually the tension between us diffused. Joe listened to me. I would like to tell you that I changed his mind, but honestly I don’t know if I did. What I do know is that I felt better in speaking up than I would have in remaining silent.

What happened the last time you heard a racist comment?

About the image: © 2020 Mars Foods & Affiliates.

A Mediator’s Bookshelf

No matter what I’m reading, I try to see if it can help me better understand conflict. Insights can come from unlikely places if we are open to them. None of these books is specifically about mediation, although one is co-authored by a mediator. All have informed my thinking about conflict and my dispute resolution practice

White Fragility: Why it’s so hard for white people to talk about racism by Robin DiAngelo

Calls for white people to educate themselves about racism have come in the wake of police shootings and violence against African American men and women. While this book is flawed, it is a good place to start.

DiAngelo is a sociologist, and so her perspective on racism is a welcome change from psychological or individualistic accounts. She offers a clear explanation of structural or systematic racism. Racism not simply a matter of racist or ignorant individuals; it is equally something embedded in our laws and practices. She also draws on years of experience as a corporate “diversity trainer” to provide vivid examples of what she calls “white fragility” – the defensive manoeuvres that some individuals undertake to resist the idea that racism is real, and that their actions might support it.

White Fragility is written from an American perspective. (Canadian readers may be amused that participants in DiAngelo’s US-based workshops have told her, “I’m not racist. I’m Canadian.”) While Canadians are not immune to racism, its contours are different here than in the U.S. DiAngelo’s focus is anti-black racism, and she has little to say about anti-indigenous racism.

In my experience as a Toronto-based mediator, race is a complicating factor in many conflicts and failing to understand this can be a barrier to resolution. I have seen race play out in different ways in personal injury mediation, community disputes, workplace conflict, and restorative justice conferences. More than ever, dispute resolution professionals need to make the effort to understand the systemic nature of racism and white privilege. White Fragility deserves a place on the mediator’s bookshelf.

Less than Human: Why we demean, enslave, and exterminate others by David Livingstone Smith

If you looked at the title and thought, “That sounds depressing,” you’re right. Philosopher David Livingstone Smith draws on research in social science, history, and evolutionary psychology to explain why human beings de-humanize others. That is, how we can come to see our fellow human beings not as creatures like ourselves but as some kind of lesser beings. Dehumanizing others in this way is all too often the first step on the path to mistreatment.

Livingston provides a wealth of examples. The chapter on the de-humanization of North American native peoples by European colonizers is particularly relevant. These events seem far in the past, yet their reverberations extend to the present time. As I knew not much more than the outlines of this history, the material here was particularly eye-opening.

This book reinforced for me how important it is to listen to how people talk about those with whom they are in conflict, and whenever possible to reinforce the humanity of those on the “other side.”

Virtuous Violence: Hurting and killing to create, sustain, end, and honor social relations by Alan Page Fiske and Tage Shakti Rai

These authors offer a radically different analysis than Livingstone Smith, and indeed from most others who have thought about conflict and violence. Fiske and Rai argue that the motive for much violence is the regulation of social relations, and that people who commit violence feel that their cause is righteous – even morally required. They provide evidence from a variety of different cultures and historical eras.

People in conflict are rarely at their best, and as mediators we’re sometimes required to understand the perspective of people who hold positions that we may find offensive. This book helped me understand how actions can look “right” from the inside while being morally problematic to those on the outside.

Feast: Why Humans Share Food by Martin Jones

Did you know that human beings are the only animals to share food outside of our immediate social groups? Jones, an archeologist of food remains, investigates the history of the meal in order to understand why. He takes us from a prehistoric communal butchery of a wild horse after it is felled by a hunting party, to the emergence of the restaurant in 18th century Europe, to a contemporary solitary diner with a newspaper and TV dinner.

Feast prompted me to think about the ways in which humans come together, cooperate, and celebrate. Attention to the social dimension of food (as opposed to its nutritional value) gives us a new perspective on lavish buffets set up in mediation spaces.

Brainfishing: A Practice Guide to Questioning Skills by Gary Furlong and Jim Harrison

If you’ve had the pleasure of being in one of Gary Furlong’s courses, it will be no surprise that Brainfishing is lively, engaging, and full of practical wisdom. Asking questions is at the heart of mediation. We ask questions to unpack parties’ positions, understand their interests, and build rapport. The authors draw on recent research in neuroscience as well as their years of experience in mediation, negotiation, and consulting.

Brainfishing is well worth reading through, and also having to hand as a refresher.

About the image: “Part of a bookshelf containing books by ancient philosophers” a photo by Roman Eisele, Wiki Media Commons

Communication Breakdown: Why we can’t get along

I’m often called into a situation where a communication breakdown has occurred. People have stopped talking to one another or refuse to talk without the presence of a manager or third party. 

The reasons why this might happen are… countless. In this video, I talk about reasons to keep talking, or to resume talking if you have stopped.

The goal of resuming a conversation is not necessarily to change the other person’s mind. That might not be possible. But what is often possible, in the face of disagreement, is mutual understanding and respectful acknowledgement of one another’s position. And that can happen only with discussion.

If you’re in a silent stalemate – with a friend, relative, neighbour, or business associate – try re-starting the conversation. Maybe start by sending a link to this video.

Lessons Learned: Julie Payette Harassment Allegations

What we can learn about “toxic” workplaces from the Rideau Hall complaints

Within the federal civil service, working with the Governor-General at Rideau Hall should be a plum position. Instead, news reports suggest that routine verbal harassment created a “toxic” workplace. I should note that these allegations have not been proven.

Here are the lessons that business owners, managers, and HR leaders can take away.

One: Make sure everyone understands the expectations for a respectful workplace

The sources who spoke to the CBC report that Governor-General Julie Payette and her secretary Assunta Di Lorenzo yelled at, belittled, and publicly humiliated employees. People were seen leaving the office in tears. One report described how trips abroad were particularly stressful for all. In-flight debriefs on the way home could last “hours” while Payette verbally attacked employees over what she considered sub-standard work. Di Lorenzo apparently accused people of being “lazy and incompetent.”

Such behaviour is clearly unacceptable in the workplace. It is the responsibility of leaders – business owners, managers, and HR personnel – to make sure that everyone understands expectations for respectful behaviour. (You might think that we can assume people would know, for example, that just because you’re the boss doesn’t mean you can yell at people who report to you. Unfortunately I’ve been working in this field long enough to know that this isn’t the case.)

Two: Structural factors can make harassment harder to address

Employees at Rideau Hall who felt harassed had a few options: They could take it up with the HR department, or with their direct supervisor, or with the Ombudsperson. The problem was that all of these roads lead directly to Di Lorenzo, the Governor-General’s secretary and her close friend. (And who, you may remember, is herself accused of workplace harassment.) Employees felt like they had no place to turn. This made an already stressful situation even more stressful.

This is a structural issue I see frequently in smaller organizations and sometimes in large ones as well: employees who are harassed do not feel that they have anywhere to turn. The person they are supposed to come to with concerns is not genuinely independent and is seen as a friend or associate of the person perpetrating the harassment.

Three: Employees will leave (and not just the ones who experience harassment directly)

In the Communications section alone, five employees have left for good and two have taken leaves of absence. One was quoted as saying, “Life’s too short. I don’t want to come to work in the morning and spend the day feeling like I’m going to cry or not feeling like I could speak up.”

People will leave a good-paying job if it causes them significant stress. Most people don’t want to go into a workplace that has too much “drama.” It is upsetting to see colleagues being treated poorly. Those who aren’t being harassed will wonder, “Am I next?”

Four: Word will get out

Workplace harassment in your organization may not make the national news, but people do talk. In larger organizations, people will know which departments are particularly dysfunctional. In smaller industries, people know which companies have bad reputations. Tools like Glassdoor make it easy to spread the word.

Five: “Abrasive” managers often feel that their actions are justified

According to reports, Payette’s “outbursts” were often a result of being upset with the quality of someone’s work and the belief that she “has to do everything herself” because everyone else is incompetent.

Such sentiments are a clear indication that a manager needs coaching in how to manage effectively and respectfully. Workplace harassment guidelines are meant to protect everyone, not just those who are highly competent. People don’t improve their job performance when they are harassed. In fact there are plenty of indications that the opposite is true – employees who are harassed feel stressed and under pressure, which makes their job performance worse.

Finally, some MPs and government ministers are calling for an investigation into the allegations against Payette and Di Lorenzo. This is a high-profile workplace and many people are paying attention. Whatever the response, those involved have a responsibility to get it right.

About the image:  Photo by Johanie Maheu, Wikimedia Commons

Black Lives Matter

Something new – Anti-racist reading group

Like many of you, I’ve been outraged and saddened by the recent violence against people of colour, both in the U.S. and in Canada.

One of the messages I keep hearing from racialized communities is that white people have work to do, and that work begins with self-examination. This could mean recognizing one’s own unconscious biases or trying to understand how white privilege contributes to sustaining racism.

This work is particularly important to me as a mediator in a multicultural society. Many of the conflicts I’m brought into have a racial component.

After reflecting on how I might be able to contribute and to do some of this work myself, I decided to organize and facilitate a group to read White Fragility: Why It’s So Hard for White People to Talk About Racism by Robin DiAngelo, a book that appears on many anti-racism reading lists.

My plan is for us to meet on line once a week for about an hour to read and discuss one chapter.

Rather than charge a fee to join the group, I’m asking participants who are able to make a contribution to a non-profit working to improve the lives of black or indigenous Canadians. (For example, Black Lives Matter Canada, Legacy of Hope Foundation, U for Change, or Black Legal Action Centre.)

If you are interested in joining me in reading and discussing White Fragility, please fill out the form on this page

Stay safe everyone.

About the image:  Photo by James Eades, Unsplash.

Remote Work and Creative Collaboration

I will just say it: There is no magic formula to ensure a highly creative remote team. 

If you lack the foundations, moving a team to virtual meetings will not suddenly make everyone more creative. The good news is that if a team already works together effectively, then there is a good chance they will continue to come up with creative solutions even if they can’t meet in person.

Let’s review the basics: Two key features make creative and collaborative problem-solving much more likely. First (and most important) you must have a culture where people feel that their input is welcome, and that their ideas will be give fair consideration. If you have somehow given the impression that critical feedback is not welcome, people will hesitate to speak up.

The second factor in a creative team is diversity. In particular, you want team members with a diversity of experience, viewpoints, and temperaments. If everyone around the table is pretty similar (say male, white, 40-ish, wearing chinos, grew up in Toronto), you might want to consider expanding the team to get a greater variety of outlook and attitude.

Let’s assume that the basics are in place. Moving to remote team meetings will still pose challenges. For one thing, attention spans are shorter when people aren’t in the same physical space. If the meeting seems dull, people will be tempted to minimize the meeting window on their computer screen and check email or look up news reports instead. On top of this, there are all the distractions of home, plus less accountability. There is no one beside you to notice that you’re not fully engaged. For these reasons, I would suggest that remote meetings be shorter than in-person meetings. (Most meetings are too long anyway – but that is a topic for another day!)

Second, it is harder to have genuine personal contact in virtual as opposed to in-person meetings. The person facilitating the meeting therefore has to make an extra effort to have people connect with one another. One way to do this is to start the meeting with a “check-in.” Have each person answer a question like, “How is the day/week going for you so far?” or “What has been your biggest win this week?” or “What is your biggest challenge at work right now?” or even “How did you spend the weekend?” The meeting chair should answer first. Others will take their cue from the first person who responds and likely answer at similar length and with a similar demeanor. If the chair answers in a joking way, that is likely how others will respond as well. 

Finally, the person chairing or facilitating the meeting should make a practice of repeating and summarizing what has been said. This will help keep everyone on track and focused, as well as help everyone catch-up if technical problems cause glitches. (Obviously, use your judgment. Don’t interrupt a good discussion to repeat and summarize – wait for a natural break.)

While no one knows exactly what the post-Covid workplace will be like, every indication is that remote work (and remote meetings) will be more common. So it make sense to master best practices and get the best from your team as soon as possible.

About the image:  Dali Atomicus, Salvador Dalí and Philippe Halsman (1948): Wikipedia

“We tried that already.” Handling Objections during a Meeting

You’re chairing a team meeting and you ask for suggestions. Farrah, relatively new to the group, makes a proposal. She’s reading from prepared notes and it is clear that she’s put some thought into this. You’re about to thank her when a voice comes from the other end of the table. It’s Sam, a 10-year veteran of the organization. “We already tried that and it didn’t work,” he says in a weary voice, sighing audibly. Farrah looks down, crestfallen. The others shift uncomfortably in their seats and stare at the table in front of them. What do you do?

How you handle Sam’s objection will have ramifications beyond today’s meeting. Some of the factors you have to navigate:

  • Farrah deserves recognition for preparing for the meeting and speaking up. You want to encourage her to keep offering ideas and suggestions.
  • Sam might very well be right. In most teams there is one person who can be counted on for a critical viewpoint. If this person can express their criticisms in a respectful manner, he or she is a great asset to any organization. However  if this person shares their views in a way that undermines others, he or she will create resentment and lower morale. Some managers will push to silence or remove someone like Sam. If Sam’s behaviour crosses the line into workplace harassment, you do need to do something. If the behaviour is not so severe, removing Sam sends the wrong message about critical engagement. Every team needs a Sam (or Samantha).
  • What about the rest of the team? If you show irritation with Sam or otherwise discourage him from speaking up, you risk sending the message that it is better to keep one’s opinion to oneself. The team may not like Sam but he is still their colleague and you are their manager. A public scolding could turn them against you very quickly. 
  • Sam may need some coaching, but you can hardly take care of that in the moment. You need to send the message that critical feedback is welcome, as long as it is delivered respectfully.

How to work with the Sams and Samanthas of the world is a bigger topic. When you are faced with dismissive criticism in the moment, the best thing to do is to lead by example. Be curious, open to feedback, and respectful to everyone. Here’s what that might look like:

Repeat Sam’s objection, “You say that we already tried that and it didn’t work.”

Draw him out. Ask him to elaborate. “Tell me more. Please remind everyone of what happened when we tried that.”

Repeat back and summarize the details.

Turn back to Farrah. Give her a chance to defend her proposal. Ask, “How is your suggestion different from what we tried in the past?” If Farrah really is suggesting something that has already been tried, ask, “Have the circumstances changed? Should we try it again?”

Ask the rest of the team if they have anything to add.

Thank Farrah, Sam, and anyone else who spoke up.

A goldsmith in his shop

Trust and Remote Work: How to do it Right

I was recently brought in to do an assessment of a department with very low morale and high staff turnover. I found one of the main sources of dissatisfaction to be the remote work policy.

That’s not exactly correct. The organization had a generous policy. Unfortunately the department manager refused to follow it.

This manager insisted that people show up at their desks at 9 and stay until 4:30 everyday. She was, frankly, a control freak and allowing people to work from home made it more difficult for her to control them.

Attitudes to remote work vary widely. Not everyone thinks it is a good thing, and some industries and jobs are not well-suited to it. Yet every indication is that the future will bring more remote work as companies do the math and calculate the possible savings in real estate costs. And more people, having had the experience of skipping their commute and working from home, will want to continue working remotely.

This brings me to a thorny topic: trust. Trust is probably the biggest barrier to successful remote work. If employees are not on-site, employers may be suspicious that they are not putting in a full day’s work. The flipside is resentment by employees who may be working just as hard or harder as they do at the office, but feel constantly monitored or micromanaged. Add to this mix a remote work policy that is unclear or unevenly applied and you have the makings of an unhappy workplace.

How can employers ensure that the work gets done when their staff are not physically present? And how can employees be sure that their efforts will be recognized?

We usually think of trust in personal terms. We trust some people but not others. Yet in a workplace setting, thinking of trust only as a personal attribute leads to problems in the long run. I’ve seen enough managers make the wrong choice in deciding which employees to trust to make me think that none of us may have very good judgement in this regard.

Instead of deciding which employees are “trustworthy,” set out clear expectations for everyone and put your trust in a system that tracks employee’s results – not the amount of time they spend at their desk.

Whatever system you come up with will depend on your particular industry. If you have different people doing similar tasks, you will need a way to compare them to one another. If you have a split workforce, with some working remotely and others on-site, you will also want to compare their results. Just make sure everyone knows what is going on, what outcomes you are tracking, and why. This is a case where more transparency is better than less.

I’ve heard about companies that make employees who are working remotely “sign in” at specific times and remain on-line for a set number of hours. Unless this is absolutely necessary for employees to accomplish their tasks, I would avoid such a system. First, there will always be people smart enough to get around whatever system of surveillance you put in place. Faking actual results is much harder. Second, one of the main benefits to employees of remote work is the ability to structure their time as they see fit. Some people are happy to be at their desk by 7 am, so that they can take their dog for a long walk mid-day. Some people need frequent breaks but are ready to put in a longer day. Forcing everyone into the same rigid timeframe removes one of the main benefits to employees of working off-site.

Next: Remote Work and Creative Collaboration

About the image: Petrus Christus, A Goldsmith in his Shop (Public Domain, courtesy the Metropolitan Museum of Art)