Manitoba Civil Service Commission
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3.1.1. Sexual Harassment
Policy
Every employee has a right to a workplace that is free from sexual harassment. Sexual harassment is illegal and will not be tolerated. Every employee has the responsibility to refrain from participating in behaviour which is, or could be perceived to be, sexual harassment.
Questions And Answers
- What is sexual harassment?
- To whom does this Policy apply?
- How can managers prevent harassment?
- What can employees do if they are being harassed?
- What is a manager's responsibility regarding sexual harassment?
- How should a manager respond to sexual harassment?
- What is involved in investigating harassment?
- What are the roles of the Employee Assistance Program, Human Resources, employees and the union regarding harassment?
- How should a manager communicate with the complainant and the alleged harasser?
- Are harassment complaints kept confidential?
- What if an employee makes a false allegation?
Questions And Answers
The Manitoba Human Rights Code prohibits sexual harassment including five types of behaviours:
- a course of abusive remarks or behaviours based on sex or gender. See Example 1.
- a series of objectionable sexual solicitations or advances. See Example 1.
- a sexual solicitation or advance made by a person who is in a position to confer or deny an employment benefit if the person making the advance knows or ought reasonably to know that it is unwelcome. See Example 2
- a reprisal or threat of reprisal for rejecting a sexual solicitation or advance. See Example 3.
- reprisal for filing a sexual harassment complaint.
Sexual harassment is not
- the normal exercise of supervisory and management responsibilities, including coaching, performance reviews, work evaluation and disciplinary action.
- voluntary or consensual sexual contact between employees. However managers should note that the Supreme Court has stated that managers who involve themselves with employees do so at their peril, as employees may later indicate that they felt coerced into the relationship even if that was not the manager's intent.
- systemic discrimination which is located in an organization's policies and practices. This type of issue should be addressed through the Removing Employment Barriers Policy.
2. To whom does this Policy apply?
This Policy applies to all employees of the Government of Manitoba including term, departmental, casual and contract employees. It applies to the workplace or activities connected with the workplace such as work sites, washrooms, cafeterias, training sessions, business travel, conferences, work-related social gatherings, the client's home and the client's work site. It applies to relationships between colleagues, between managers and employees and between employees and clients.
3. How can managers prevent harassment?
To prevent harassment, managers can:
- inform employees that harassment will not be tolerated
- educate and train all supervisors and employees
- orient all staff to the government's harassment policies
- initiate action quickly without waiting for a complaint when the manager believes harassment is occurring
- ensure the work environment is based on respect
- model respect
- monitor the workplace to ensure no harassment occurs.
4. What can employees do if they are being harassed?
Based on the severity of the harassing behaviour, the employee's personal comfort and the dynamics of the workplace, an employee may choose a course of action from the following options:
- If comfortable doing so, they may inform the harasser that his or her actions are not welcome.
- contact someone in Authority to make it stop: their supervisor, manager, director, Human Resources Branch, or Civil Service Commission
- file a complaint verbally or in writing with a person in Authority.
- In cases of assault, employees may wish to contact the police.
- discuss the matter with EAP or their union
All harassment complaints must be taken seriously by management. If complainants are not satisfied with the handling of their complaint, they may wish to contact the Manitoba Human Rights Commission.
5. What is a manager's responsibility regarding sexual harassment?
Managers are responsible to prevent harassment. A manager who knows, or ought reasonably to know, that harassment is occurring but fails to take appropriate action will be disciplined. Moreover, if an employee files a human rights complaint and it is proven that the manager knew of the harassment and failed to act, the manager as well as the employer may be subject to sanctions.
Managers and supervisors should:
- provide a respectful work environment that is free from harassment
- prevent harassment
- manage the situation when harassment has occurred. This requires
that a manager:
- make a quick assessment of the severity of the situation and safeguard against further harassment
- review and respond to sexual harassment situations using the guidelines in Question 6.
- ensure there are no reprisals against staff for making complaints or participating in investigations.
Managers should not:
- require an employee to file a grievance or a written statement before acting on an allegation of harassment
- require that a complainant confront the alleged harasser before taking action on a complaint of harassment
- advise any employee to tolerate harassment
- conduct investigations or take disciplinary action without first consulting Human Resources
- mediate without first consulting EAP
- attempt to avoid the issues by simply advancing it to the next level of management.
6. How should a manager respond to sexual harassment?
Sexual harassment covers a broad continuum of behaviours. A range of responses and resolutions are available. The following table provides a guideline to assist managers respond appropriately to the severity of the harassment. The guiding principle is that the response is fair and reasonably appropriate to the harassment. For example, you would not investigate where an employee told one offensive joke but you would speak with the employee. You would investigate where an employee is alleged to have made repeated unwelcome propositions. Managers must consult Human Resources on all serious allegations of sexual harassment before taking action.
| Type of Conduct | Managers Must |
| 1) A manager notices sexual jokes, innuendo, cartoons circulating in the office. Complaints may be made. |
|
| 2) An employee makes a single comment or joke which another employee finds offensive |
|
| 3) A request for a date from one
employee to another is received as unwelcome. Also leering, gestures. |
|
| 4) A request for a date from a supervisor, is received as unwelcome |
|
| 5) Two employees involved in a
relationship bring personal details or behaviours into the workplace,
causing others to be uncomfortable
or employees, formerly involved, bring personal animosity into the workplace, causing one another or others to be uncomfortable |
|
| 6) Employees in a workplace retaliate against a colleague because he or she made a sexual harassment complaint |
|
| 7) Repeat behaviour as outlined in 1-6 above despite direction to stop |
|
| 8) A supervisor coerces or threatens another employee into a sexual relationship. |
|
| 9) Sexual assault involving any unwanted physical contact of a sexual nature |
|
Note: In all cases of suspected sexual harassment, managers make the parties aware of the Employee Assistance Program. EAP is also available for workplace intervention where sexual harassment has affected the work group.
7. What is involved in investigating harassment?
Not every complaint of harassment warrants an investigation. However in situations where allegations are denied or discipline is likely, an investigation may be appropriate to determine the facts.
An investigation generally includes the following:
- interviewing the complainant
- meeting with the alleged harassers and their representatives to present the complaint and hear the response
- interviewing witnesses
- determining the facts to decide what response is appropriate
- providing findings to the manager.
An investigation may result in one of the following conclusions:
- Evidence and the balance of probability standard of proof show that harassment occurred, and an appropriate course of action is determined.
- Evidence shows that harassment did not occur, but actions may be recommended, such as workplace mediation or education.
- Evidence shows the accusation was vexatious and malicious. Discipline against the complainant may be recommended. (Note: These cases are extremely rare.)
- Evidence was insufficient to draw a conclusion but actions may be recommended including education and debriefing.
8. What are the roles of the Employee Assistance Program, Human Resources, employees and the union regarding harassment?
The Employee Assistance Program (EAP) has the following responsibilities:
- responds to questions regarding harassment
- helps individuals who wish to confront a harasser
- provides advice for dealing with backlash in the workplace
- counsels the complainant
- counsels and educates the harasser
- provides mediation services
- facilitates debriefing in the workplace to manage reactions to the complaint and its outcome.
Human Resources and the Civil Service Commission have the following responsibilities:
- advise and consult with managers
- advise and counsel employees
- receive complaints
- conduct investigations
- refer employees to EAP
- ensure consistency in applying this Policy.
Employees have the following responsibilities:
- respect the rights of others
- maintain a work environment free from deliberate or unintentional actions that might be perceived as harassment
- call it when they see it. Raise the matter with the harasser or with a person in Authority if they know that harassment is occurring.
The Union's role includes:
- advising the complainant and the alleged harasser
- providing representation as deemed appropriate by the union.
9. How should a manager communicate with the complainant and alleged harasser?
The manager communicates with the complainant by:
- listening to the complainant and taking the issues seriously
- discussing the process to be followed
- informing and supporting the complainant as the process unfolds
- informing the complainant of the outcome of the complaint
- advising the complainant to keep the matter confidential during the investigation.
The manager communicates with an alleged harasser by:
- informing the alleged harasser of the complaint
- advising the alleged harasser of their right to have a representative present
- providing alleged harassers an opportunity to explain their side and listening carefully
- directing the alleged harasser to keep the matter confidential
- informing the alleged harasser of the outcome of the investigation
10. Are harassment complaints kept confidential?
Managers, Human Resources and investigators keep the details of a complaint confidential to the best of their ability. However, confidentiality does not mean anonymity. Complainants should be aware that confidentiality is subject to the following limitations:
- A manager is responsible to address every complaint
- The alleged harasser is informed of the nature of the complaint
- It may be necessary to interview witnesses
- If the situation leads to discipline, the disciplined employee has a right to grieve. This may result in an arbitration hearing in which the employer presents its case through witnesses, including the complainant, to establish there was just cause for the discipline.
These limitations on confidentiality should not discourage employees from making a complaint. Many complaints are resolved without a formal investigation or arbitration. Employees are encouraged to raise issues as early as possible so that management can resolve them. Written complaints are not placed on the complainant's file.
Employees who wish to discuss harassment in complete confidence can contact Employee Assistance Program (Telephone 945-5786, Toll-free:1-800-282-8069).
11. What if an employee makes a false allegation?
If the investigation proves that the complaint was made for frivolous or vindictive reasons, the complainant is subject to discipline. This does not apply to complaints made in good faith but which are not proven.
Comment Boxes
| A reasonable person | The "reasonable person standard"
refers to an objective assessment of how a specific behaviour might
generally be received. The "reasonable person standard"
for determining what types of conduct are offensive is drawn from
the perspective of the person being harassed. It is not drawn from
the perspective of the harasser. In cases of sexual harassment,
where a woman has been harassed, the case is now generally viewed
from the perspective of a "reasonable woman".
To decide if their behaviour is harassment, employees should ask themselves if the recipient might consider it unwelcome or offensive. Behaviour is harassment when the recipient finds it unwelcome, based on the reasonable person standard. |
| Series/ Course | Generally, sexual harassment is a series of incidents or behaviours. One minor incident alone generally does not constitute harassment. In exceptional circumstances, however, a single critical incident such as sexual assault constitutes sexual harassment. |
| Educate | Contact Organization and Staff Development for seminars and courses related to recognizing and preventing sexual harassment. Employees disciplined for harassment can receive an educational counselling from EAP. |
| Example-1 | A poisoned work environment is characterized by pervasive sexually
oriented remarks or behaviour, not necessarily directed at anyone
in particular, that creates a negative psychological and emotional
work environment for some employees. Examples:
|
| Example-2 | Situations where a manager promises rewards in exchange for sex
or threatens consequences for rejecting a sexual advance are called quid
pro quo, which means "this for that". Some examples
of quid pro quo type of sexual harassment are:
|
| Example-3 | A probationary employee who complains of the pervasive sexual discussion in the workplace is told to "go along with it" if she wishes to "fit in". |
| Safeguard against further harassment | Managers must provide a safe work environment for their employees.
If the complaint is of a serious nature, involving threats of reprisal
or risk of recurrence, or if the complainant is clearly fearful
or intimidated, the manager immediately contacts Human Resources
to discuss a course of action for accommodating the complainant.
The following options can be considered:
|
| Workplace Intervention | Employee Assistance Program is available to consult with groups of employees who have been affected directly or indirectly by sexual harassment. This service helps clear the air and conclude the issue. |
| Balance of probability | Balance of probability refers to the standard
of proof in civil proceedings and arbitration cases. This standard
requires a party to establish its case by the greater weight of
evidence. Given the facts of the case, is it more likely than not
that the allegations are true. This "balance or probability" standard
is not as stringent as the "beyond reasonable doubt" standard
which applies in criminal cases.
Serious misconduct such as sexual harassment rarely takes place in front of witnesses. However, this does not mean that an investigator cannot establish sufficient evidence to draw a conclusion and recommend discipline, including dismissal. The investigator considers factors such as similar fact evidence and credibility and determines if, based on the weight of the evidence, the alleged misconduct took place. |
| A manager who sexually harasses... | Quid pro quo means "this for that" and refers
to situations where a manager either promises rewards in exchange
for sex, or threatens consequences to an employee who rejects a
sexual advance. See also Example 3.
In addition to sexual harassment, this type of behaviour represents conflict of interest because it uses the Authority of one's position for personal gain. Managers should note that even apparent consensual sexual relationships between a manager and an employee become very complicated because it is difficult to know whether the employee is a willing participant or feels coerced into the relationship. The Supreme Court, in a recent case, cautioned that supervisors who involve themselves with employees do so at their peril. |
| Require that a complainant confront the alleged harasser | You may wish to ask the complainant if they wish to discuss the
issue with the other party. But don't force it. It would be inappropriate
to suggest direct communication:
Managers consult EAP or Human Resources about the appropriateness of this type of action. |
| Inform | Managers can inform employees on government's Policy on harassment
by:
|
| Mediation | Mediation is appropriate only when both parties
are willing to participate and when there is a balance of power
between the complainant and the alleged harasser. Mediation works
best in situations of poisoned work environment. It should not
be used to deal with harassment by a person in Authority or assault.
Consult EAP to assess the appropriateness of mediation and to provide
mediation services. Managers and Human Resources should not attempt
to mediate without a clinical assessment of both parties by EAP.
Mediation enables both parties to appreciate the other's point of view. The goal is to enable the complainant and harasser to work together constructively in the future. Preparation for mediation is designed to empower complainants to confront offensive behaviour constructively and to educate and sensitize the harasser regarding the impact of their behaviour. |
| Discussing the process | Managers ask the complainants how they want the complaint resolved. The complainant is informed that ultimately management determines the process and outcome. For example, despite the fact that complainants indicate that they do not wish the harasser to "get into trouble", but just "want it to stop", the manager may have to take more serious action. |
| Review | A manager reviews the situation by:
|
| Respond | A manager responds to allegations of harassment by:
|
| File a complaint | It is best if employees who believe they have been harassed can deal with it quickly. Employees may file a complaint by describing the harassment, verbally or in writing, to a person in Authority: their supervisor, manager, director, Human Resources or the Civil Service Commission. It is not necessary to put a complaint in writing. Employees who are unsure about filing a complaint can discuss the issue with Employee Assistance Program. Where possible, the employee can attempt to stop the harassment by telling the harasser that the behaviour is unwelcome. If the behaviour persists or if the employee is unable to speak directly to the harasser, the employee should file a complaint. |
| Fair | Fairness refers to conduct that is unbiased, just and honest. It may also mean treating employees consistently. The principle of fairness, enshrined in The Labour Relations Act, is fundamental to employee relations. |
| Manitoba Human Rights Commission | Manitoba Human Rights Commission 7th Floor - 175 Hargrave Street Winnipeg MB R3C 3R8 Telephone: 945-3007 1-888-884-8681 TTY 945-3442 Brandon 1-800-201-2551 or 726-6261 |
Authority
- The Canadian Human Rights Act
- The Manitoba Human Rights Code Section 19(1), 19(2)
- Civil Service Regulations 43, Section 17(1) and (2)
- GEMA 51 and other collective agreements
- The Civil Service Act 24(1)
- Civil Service Commission Board. Minute CSC1-97/98-8
- (Approved in principle subject to communication with MGEU)
- (REVISED Q5, April 30,1997 based on feedback from MHRC)
- (REVISED Feb 1, 1998 based on MGEU feedback)
Effective date: April 16, 1997
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