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Workplace harassment: Prescribing the wrong medicine to cure the incurable?

Some complaints require a non-legalistic framework to be utilized


On Jan. 1, new regulations related to Bill C-65 came into force toward the prevention and resolution of violence and harassment in the federally regulated workforce. (motortion/Adobe Stock)

The escalating interest in workplace dispute resolution processes has been fuelled by the destructive mental health and organizational impacts of workplace conflict, but also by the emergence of workplace anti-harassment legislation.

Regarding the negative effects of harassment on individuals and employers, statistical data confirm that interpersonal violations cause injury and damage that governments have been unable to ignore.

At the same time, the mountainous volume and complexity of workplace harassment allegations is such that stakeholders — including legislators — are unclear on how to cure them.

Although the perfect answer is not obvious, it is apparent that traditional legal justice will not always work.

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But since Canadian employers are being required to seek out resolutions to workplace harassment allegations, it is important to discuss the available remedies.

Legal model as go-to prescription

First, it has to be acknowledged that the legal requirement to prepare a workplace anti-harassment policy is not a problem for employers.

Resources are readily available to assist HR managers in drafting a document that defines harassment, prohibits it in the workplace and urges that the behaviour be reported.

The challenges start when employees actually report harassment. For employers, some allegations are easier than others to diagnose and treat.

Consider these examples:

  1. Dan alleges that,last Tuesday, Joe shouted expletive-charged insults at him from across an open-concept office occupied by numerous co-workers; and
  2. Mary complains that her supervisor, Sally, has been belittling and demeaning her by ignoring Mary’s suggestions in team meetings and also questioning Mary’s acumen for her job.

Regarding the first example, the familiar legalistic workplace behaviour model that has been the backbone of workplace regulation for decades can be highly effective and easy to implement.

As Greg Paul explained in his article titled “Paradoxes of Restorative Justice in the Workplace,” the legalistic framework makes use of traditional problem-solving methodology that emphasizes rationality, objectivity and impartiality and that minimizes emotion.

Here, Dan claims that on Tuesday, Joe screamed “you’re a f***ing idiot!” across the office.

Joe denies the allegation, saying that his voice is loud at the best of times, but on Tuesday he was struggling with an ear infection that made him speak even louder. Joe also says that he never uses the F-word.

Using a rational, objective and impartial investigation process, the employer finds out that, of the seven other employees who were present on Tuesday, two didn’t hear anything because they were wearing noise-cancelling headphones, but the other five all heard Joe shout “You’re a f***ing idiot!”

In this example, the legalistic model proves to be an effective diagnostic exercise, and it can also be useful in identifying a response to the misconduct.  The employer’s workplace policies strictly prohibit vulgar language, and that rule supports disciplinary action against Joe.

But what about the second example?

Mary says that Sally has ignored her suggestions in meetings and that Sally has also questioned Mary’s capacity to perform her job functions.

From Mary’s perspective, these are demeaning behaviours that have caused her embarrassment and humiliation. But Sally sees it all differently.

She says that, while Mary’s comments in meetings are normally discussed even if their relevance is questionable, on two occasions time ran short and it was impossible to do so.

Further, Sally indicates that, while she cannot remember her exact choice of words, she did suggest that Mary may not be perfectly suited to her job, because Mary herself had questioned whether she has what it takes to complete the complex calculations required.

The legalistic framework is a less effective treatment in this case, since the application of rationality, objectivity and impartiality could easily result in an evidentiary “toss-up” — a notorious “she said vs. she said” outcome.

It doesn’t even lead to a clear diagnosis. Here, a different justice prescription will be more effective.

More than one treatment available

In order to truly resolve some workplace harassment complaints, a non-legalistic framework has to be utilized.

One option is a restorative, dialogic model that is designed to focus on understanding the emotional and relational damage caused by particular workplace behaviours and how to restore the people involved.

Paul writes that “…a restorative approach emphasizes the use of emotion-focused coping practices like forgiveness that allow room for personal communication and facilitate personal and relational reunification.”

The research on the effectiveness of restorative justice as an effective treatment for interpersonal conflict is compelling.

Yet, the use of it in workplaces is paradoxical, in part because employers and legislators have historically conditioned stakeholders in the employment relationship to perceive the legalistic framework as the only appropriate elixir to treat workplace interpersonal conflicts.

As a result, individuals involved in the conflict often default to the familiar (but not always effective) legalistic model for an answer to their problems.

In order to overcome the paradoxes that the restorative model presents in workplaces, organizations will have to re-calibrate their stakeholders’ understanding of how certain kinds of conflicts will be cured.

Doing that requires recognition of effective alternatives to legal justice and then communicating these in a compelling way to the organization’s members in order to facilitate the necessary mind shift from objective fact-driven solutions to emotion-based reconciliation.

Bill Howatt is the Ottawa-based president of Howatt HR. Kelly VanBuskirk is a partner with Lawson Creamer in Saint John, N.B.

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