Commercial Liability Protection Against Workplace Harassment

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Commercial Liability Protection Against Workplace Harassment

Workplace harassment in its many forms is a hot topic. And while Hollywood and political arenas are getting all of the press with #metoo hashtags trending across the continent, the issue has been and continues to be a major concern for small and medium businesses in Canada.

A recent survey conducted by the Government of Canada (B.C. accounted for the third highest number of respondents) found that 60 percent reported having experienced harassment in the workplace. Thirty percent of respondents said that they had experienced sexual harassment, with 94 percent of them being women. Even more concerning, is that the Government data on sexual harassment may fall short. Numerous studies indicate that an estimated 50 percent of women in Canada say they have experienced sexual harassment in the workplace. Discrepancies are all but inevitable when you consider that fewer than 30 per cent of women actually report the harassment.

Bottom line, this is a major concern for commercial businesses, and one that cannot be swept under the rug. The #metoo campaign has empowered people to speak up against those who violate regulations against workplace harassment, with filed claims expected to rise.

So, what can you do as a commercial business to reduce the liability risk associated with workplace harassment?

How Your Commercial Business Can Protect Itself Against Sexual Misconduct and All Forms of Harassment in the Workplace

1. Protect Staff First

There is no better protective measure than a preventative one. Not one single person within your company hierarchy should have to be exposed to harassment. By removing this potential from the equation, you will be as liability free as possible.

The problem, is that there is a very clear ignorance over what constitutes harassment. For example, a recent study of Canadian executives found that 94 percent didn’t think that sexual harassment was a problem in their companies, even though over 30 percent of the very same executives said that they had heard of sexual harassment within their organizations. It should be noted that 95 per cent of the executive respondents were male.

Moving forward, an updated policy must be formerly introduced to clearly define what constitutes harassment. The policy will not only address sexual misconduct, but bullying, and inappropriate behaviour towards staff with disabilities and those who are members of a visible minority.

WorkSafeBC defines Bullying and Harassment as:

  • inappropriate conduct or comment(s) by a person towards a worker;
  • that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.

Examples of behaviour that may be construed as bullying or harassment include (but are not exclusive to):

  • lewd comments about gender and/or sexual orientation.
  • lewd staring or gesturing.
  • unwelcome physical contact.
  • verbal aggression or insults.
  • nonverbal communications (email and print) that are lewd and/or inappropriate.
  • calling someone a derogatory name, be it directly to them, or about them, to another.
  • harmful hazing or initiation practices.
  • vandalizing of personal belongings.
  • spreading of malicious rumours.

While bullying and harassment are often associated with the top-down hierarchal structure, the “power” to harass someone on staff can come in many forms, including (but not exclusive to) the following:

  • holding a formal position of power in the workplace.
  • being friends or having connections with influential people or workplace decision-makers.
  • having access to resources that give one person an advantage over others.
  • being older, or having more experience or seniority.
  • expecting staff to put up with the behavior of clients who may act in a disrespectful, bullying, and/or inappropriate manner.
  • expecting staff to put up with the behavior of contractors who may act in a disrespectful, bullying, and/or inappropriate manner.

To ensure that those who experience harassment aren’t afraid to come forward, a better reporting system must be put in place within your organization. The system must achieve the following:

  • enable workers to report incidents or complaints of workplace bullying and harassment, including how, when, and to whom.
  • include provisions for reporting if the employer, supervisor, or person acting on behalf of the employer is the alleged violator. This can be a challenge for small businesses. When human resource constraints make it difficult, let staff know that they can go directly to WorkSafeBC. The prevention information line for reporting bullying and harassment by the employer is 1(888)621-7233.
  • include provisions for reporting inappropriate behaviour from others beyond the organization, including contractors, clients, and/or customers (where applicable).

Download the “Toward a Respectful Workplace” handbook from WorkSafeBC, share it with everyone on staff, and develop your company policy using it as your guide.

2. Protect Your Business

By instituting a strict policy against harassment that addresses all of the above, you will have taken a positive step in the right direction. However, this does not free you from liability risk.

For instance, someone on your staff may still behave inappropriately. When this occurs, employees suing for harassment may name you (the employer) as being liable, along with the person alleged to have committed the harassment. Since you cannot always control the actions of everyone on staff, you need to protect your business, along with company officers and directors from the legal defense and payment costs that may arise from allegations of inappropriate behaviour towards workers. Your liability policy must be comprehensive enough to cover defence costs for civil, criminal, administrative, regulatory mediation, and arbitration proceedings, in addition to the cost of successful claims against your business.

Even if you have complete faith that staff in the aforementioned positions of “power” will abide by all guidelines, issues can also arise from an unfortunate few who may file a grievance for the wrong reason, knowing that some companies may be willing to “settle” to avoid backlash. Some individuals will confuse the appropriate exercising of managerial authority as being a form of bullying and harassment. Verbal sanctions may occur in both a public (i.e. on the shop floor) and private (i.e. in an office) setting when there has been poor performance relating to job duties, deadlines, instructions, and so forth. An environment should not be created where appropriate disciplinary actions cannot be taken. In the rare (but possible) event that someone on staff seeks to take advantage of the current climate, you also need to ensure adequate commercial insurance to cover the cost of legal proceedings, even if the end result of the case falls in your favor.

Don’t wait another day. The liability threat to your business is real. Contact an independent broker at Park Insurance today to make sure your BC business mitigates the risk of all forms of workplace harassment.

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