Model Harassment Policy
February 4, 1998

Statement of Principles

Commitment of the Firm

[Name of firm] is committed to providing a collegial working environment in which all individuals are treated fairly and with respect and dignity. Each individual has the right to work in a professional atmosphere which promotes equal opportunities and prohibits discriminatory practices.

Workplace harassment is offensive, degrading and threatening. [Name of firm] has adopted this harassment policy to make clear that workplace harassment will not be tolerated in our firm. The firm encourages reporting of all incidents of workplace harassment, regardless of who the offender may be. Individuals, regardless of seniority, found to have engaged in conduct constituting workplace harassment may be severely disciplined.

The firm recognizes that its members and employees may be subjected to workplace harassment by clients, by others who conduct business with the firm, by opposing counsel, court personnel or judges. Under these circumstances the firm acknowledges its responsibility to do all in its power to support and assist the person subjected to such harassment.

Application of the Policy

This policy applies to all those working for [name of firm] including secretarial, support, professional and administrative staff, articling and summer students, associates and partners. [Name of firm] will not tolerate workplace harassment whether engaged in by fellow employees, supervisors, associates or partners.

Other Remedies

This policy is in addition to and not in substitution for such rights as an individual may have under the Alberta Human Rights, Citizenship and Multiculturalism Act or the procedures of the Law Society of Alberta.

Purposes

The purposes of this policy are:

1. to maintain a working environment that is free from harassment;
2. to alert all members and employees of the firm to the fact that most forms of workplace harassment are an offence under the law and contrary to the Code of Professional Conduct for members of the Law Society of Alberta;
3. to set out the types of behaviour that may be considered objectional, abusive or offensive;
4. to establish a mechanism for receiving complaints of workplace harassment and to provide a procedure by which the firm will deal with these complaints; and
5. to provide an example of the steps a responsible employer can take towards maintaining a working environment in which members and employees treat each other with mutual respect.

This policy is not intended to constrain social interaction between people in the firm or to affect the ordinary and proper evaluation of the performance of a person's duties. The policy is intended to foster a working environment in which members and employees treat each other with mutual respect.

Definitions

1. Workplace Harassment

"Workplace harassment" includes "sexual harassment" as defined below and "retaliation" as defined below and is one or a series of incidents involving unwelcome comments or actions concerning a person's race, colour, ancestry, place of origin, political belief, religion, marital status, physical or mental disability, age, sex, or sexual orientation:

1. when such conduct might reasonably be expected to cause insecurity, discomfort, offence or humiliation to another person or group;
2. when submission to such conduct is made either implicitly or explicitly a condition of employment;
3. when submission to or rejection of such conduct is used as a basis for any employment decision including, but not limited to, matters or promotion, raise in salary, job security or benefits affecting the employee and evaluation; or
4. when such conduct has the purpose or the effect of interfering with a person's work performance or creating an intimidating, hostile or offensive work environment.

Types of behaviour which constitute workplace harassment include, but are not limited to, any violent or threatening physical or verbal outburst or abuse, sarcastic or derogatory comments or actions which undermine, demean, belittle or humiliate an individual or group or their ability or intelligence, yelling, screaming, swearing or similar behaviour aimed at intimidating, frightening, coercing or offending those at whom it is directed.

2. Sexual Harassment

For the purposes of this policy "sexual harassment" is defined as one or a series of incidents involving unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature:

1. when such conduct might reasonably be expected to cause embarrassment, insecurity, discomfort, offence or humiliation to another person or group;
2. when submission to such conduct is made either implicitly or explicitly a condition of employment;
3. when submission to or rejection of such conduct is used as a basis for any employment decision (including, but not limited to, matters of promotion, raise in salary, job security or benefits affecting the employee); or
4. when such conduct has the purpose or the effect of interfering with a person's work performance or creating an intimidating, hostile or offensive work environment.

Sexual harassment most commonly occurs in the form of behaviour by men towards women; however, sexual harassment can also occur between men, between women, or as behaviour by women towards men.

Types of behaviour which constitute sexual harassment include, but are not limited to:

(a) sexist jokes causing embarrassment or offence, told or carried out after the joker has been advised that they are embarrassing or offensive, or that are by their nature clearly embarrassing or offensive;

(b) leering;

(c) the display of offensive material of a sexual nature;

(d) sexually degrading words used to describe a person;

(e) drawing attention to a person's sex and having the effect of undermining the person's role in a professional and business environment;

(f) derogatory or degrading remarks directed towards members of one sex or one sexual orientation;

(g) sexually suggestive or obscene comments or gestures;

(h) unwelcome sexual flirtations, advances, or propositions;

(i) unwelcome inquiries or comments about a person's sex life;

(j) persistent unwanted contact or attention after the end of a consensual relationship;

(k) requests for sexual favours;

(l) unwanted touching;

(m) verbal abuse or threats; and

(n) sexual assault.

3. Retaliation

Retaliation is any action taken against an individual in retaliation for:

1. having invoked this policy whether on behalf of oneself or another individual;
2. having participated or cooperated in any investigation under this policy; or
3. for having been associated with a person who has invoked this policy or participated in these procedures.
    

4. Included Behaviour and Locations

For the purposes of this policy the types of behaviour which constitute workplace harassment include, but are not limited to verbal abuse or threats, offensive comments and actions which demeans, belittles or humiliates an individual or group, and physical assault, and can occur:

1. at the office;
2. at office-related social functions;
3. in the course of work assignments outside the office;
4. in the courtroom;
5. at work-related conferences or training sessions;
6. during work-related travel;
7. over the telephone or by e-mail; or
8. elsewhere if the person harassed is there as a result of work-related responsibilities or a work-related relationship.

5. Responsibilities

[The managing body of the firm] is responsible for:

1. discouraging and preventing workplace harassment, whether or not complaints of workplace harassment have been brought to the attention of the [the managing body of the firm];
2. investigating every written complaint of workplace harassment;
3. imposing strict disciplinary measures, when a complaint of workplace harassment is found to have been substantiated, regardless of the status or seniority of the offender;
4. doing all in its power to support and assist any member or employee of the firm who complains of workplace harassment by a person who is not a member or employee of the firm (e.g., client, opposing counsel, judge, member of court staff, messenger);
5. providing advice and support to persons who are subjected to workplace harassment;
6. formally acknowledging to a person who has been found to have been subjected to workplace harassment that workplace harassment has taken place;
7. regularly reviewing the procedures of this policy to ensure that they adequately meet the policy objectives;
8. maintaining records as required by this policy;
9. making all members and employees of the firm aware of the problem of workplace harassment and the existence of the procedures available under this policy; and
10. appointing advisors, and providing the training and resources for them to fulfil their responsibilities under this policy.

Every member and employee of the firm has a responsibility to play a part in ensuring that the working environment is free from workplace harassment. This responsibility can only be met if every lawyer ensures that his or her conduct avoids even the suggestion that it might constitute workplace harassment, in the same way that a lawyer seeks to avoid even the suggestion of professional misconduct. In addition, any member or employee of the firm who believes that a colleague has experienced or is experiencing workplace harassment is encouraged to notify one of the advisors appointed under this policy.

6. Procedures

1. Disciplinary Action

Members and employees of the firm against whom a complaint of workplace harassment is substantiated may be severely disciplined, up to and including dismissal or removal from partnership1. This policy will be applied without regard to status or seniority.

7.Confidentiality

General

The firm understands the difficulty of coming forward with a complaint of workplace harassment and recognizes a complainant's interest in keeping the matter confidential.

To protect the interests or the complainant, the person complained against and others who may report incidents of workplace harassment, confidentiality will be maintained throughout the process and information relating to the complaint will only be disclosed to the extent necessary to carry out these procedures.

Records

All records of complaints, including contents of meetings, interviews, notes of advisors, manner of investigation, results of investigations, resolutions or outcomes and other relevant material will be kept in the firm's confidential complaints file to which only { } will have access and will only be disclosed to the extent necessary to carry out these procedures, [comply with any requirements under the firm's policy of insurance against claims of harassment] and as required by law.

Advisors

Appointment

The firm will appoint at least two persons who are members or employees of the firm to serve as advisors under this policy2. In carrying out their duties under this policy, advisors will be directly responsible to [the managing body of the firm].

Training

The firm will arrange for the advisors to receive appropriate initial and continuing training as well as other institutional support and assistance for carrying out their responsibilities under this policy.

Initial Action by Complainant

A person who considers that she or he has been subjected to workplace harassment (the complainant") is encouraged to bring the matter to the attention of the person responsible for the conduct. Where the complainant does not wish to bring the matter directly to the attention or the person responsible, or where such an approach is attempted and does not produce a satisfactory result, the complainant should seek the advice of an advisor.

Meeting with Advisor

The advisor will advise the complainant of:

1. the right to make a written complaint under this policy when the alleged harasser is a member or employee of the firm;
2. the availability of counselling and other support services provided by the firm;
3. the right to be represented by any person of choice at any stage of the process when the complainant is required or entitled to be present;
4. the right to withdraw from any further action in connection with the complaint at any stage (even though the firm may continue to deal with the complaint under paragraph 2.6.2(c));
5. other avenues of recourse available, such as a complaint under the Alberta Human Rights, Citizenship and Multiculturalism Act, to the Law Society of Alberta or, where appropriate, under the Criminal Code, as well as any time limits which may apply to such other avenues of recourse; and
6. the availability of the Equity Ombudsperson for the Law Society of Alberta on a confidential basis to assist in resolution of the complaint.

No matter what decision is made concerning further action, the advisor will keep a confidential written record of the initial complaint. The advisor's notes and records of the initial complaint will remain confidential unless the complainant allows the advisor to disclose any part of them.

Outcomes to Meeting with Advisor

Complainant and Advisor agree that the conduct is not workplace harassment

If the complainant and the advisor agree that the conduct in question is not workplace harassment as defined in this policy, no further steps will be taken or required under this policy.

• Complainant does not wish to make a written complaint

Where a complainant brings to the attention of the advisor facts which the advisor believes constitute prima facie evidence of workplace harassment but the complainant does not wish to make a written complaint, the following steps may be taken3:

1. the complainant may request the advisor to meet with the person whose conduct has caused the offence with a view to obtaining an apology and an assurance that the offensive conduct will not be repeated;
2. 
   where the complainant does not wish the advisor to take any further action, the advisor may nevertheless meet with the person whose conduct has caused the offence if the advisor is satisfied that this can be done without disclosing, directly or indirectly, the identity of the complainant; or
3. 
   where the complainant does not wish the advisor to take any further action, the advisor may nevertheless make a written complaint as provided in paragraph 2.7 where there have been previous complaints against the person whose conduct caused offence, or where the advisor believes the firm has a responsibility to address the situation such as where the person whose conduct caused offence has given an assurance not to repeat previous workplace harassment.

If the advisor has spoken to the person whose conduct caused offence in accordance with paragraph 2.6.2(b), the advisor will keep a confidential written record of that discussion.

Complainant decides to make written complaint

Where the complainant, after meeting with the advisor, decides to make a written complaint, including the situation where the advisor believes that the conduct in question is not workplace harassment as defined in this policy, the advisor will:

1. assist the complainant in drafting a written complaint which must be signed by the complainant; and
2. give copies of the complaint, without delay, to the person against whom the complaint is made and to the complainant.
    

Written Complaint by Advisor

Where the advisor decides that a written complaint should be made, the advisor will:

1. prepare and sign a written complaint;
2. provide copies of the complaint, without delay, to the person against whom the complaint is made and to the complainant; and
3. forward the complaint to [the managing body of the firm].
    

Notice to Person Against Whom Complaint is Laid

Where the advisor gives a copy of the complaint to the person against whom the complaint is laid, the advisor will include with the complaint a copy of this policy and a notice that the person has the right to be represented by any person of choice at any stage of the process when the person against whom the complaint is laid is required or entitled to be present.

Opportunity for Resolution Before Investigation

Where the complainant decides to make a written complaint, the advisor may, if the complainant consents, seek a meeting with the person against whom the complaint is laid with a view to obtaining an apology or such other resolution as will satisfy the complainant.

Outcomes to Resolution Meeting

Resolution

Where a resolution to the complaint is achieved at the meeting held pursuant to paragraph 2.9, the advisor will, without delay, forward the written complaint and the advisor's recommendations concerning resolution of the complaint to [the managing body of the firm]. Where the recommendations are accepted by [the managing body of the firm], the written complaint and the resolution will be recorded in the firm's personnel records relating to the person against whom the complaint was laid.

No resolution

Where a resolution to the complaint is not achieved at the meeting held pursuant to paragraph 2.9, the advisor will forward the written complaint and the fact that a resolution was attempted but not reached to [the managing body of the firm].

Filing of Written Complaint

If the complainant does not consent to the process set out in paragraph 2.9, the advisor will forward the complainant's written complaint to [the managing body of the firm] without delay.

When a written complaint, whether issued by an advisor or by a complainant, is forwarded to [the managing body of the firm], a copy will be filed in the records relating to the person against whom the complaint is laid.

Investigation

[The managing body of the firm] will appoint a person or persons to investigate every written complaint and report on that investigation. Advisors will not undertake the investigation.

Where a resolution to the complainant is achieved and is recommended by the advisor, [the managing body of the firm] may choose to limit the investigation to a review of the written complaint and the advisor's recommendation.

Investigation Procedure

1. In pursuing the investigation the Investigator will try to take the wishes of the complainant under consideration, but should thoroughly investigate the matter as s/he sees fit, keeping the complainant informed as to the status of the investigation. Steps to be taken include:
2. confirm name and position of complainant;
3. identify the person whose conduct caused offense;
4. thoroughly ascertain all facts;
5. determine frequency/type of alleged objectionable conduct and, if possible, the dates and locations where alleged conduct occurred;
6. find out if there were witnesses who observed the alleged conduct;
7. ask the individual how s/he responded to the objectionable conduct;
8. determine whether the complainant consulted anyone else about the alleged conduct and take note of who else knows and their response to the disclosure;
9. develop a thorough understanding of the professional relationship, degree of control and amount of interaction between the person whose conduct caused offense and complainant (Does the person control compensation, terms of employment or promotions? Do these individuals work in close proximity to one another and/or on the same projects?);
10. determine whether the person whose conduct caused offense has carried out any threats or promises directed at the complainant or whether the terms of employment have been adversely affected;
11. does the complainant know of or suspect that there are other individuals who have been subjected to the same objectionable conduct by the person whose conduct caused offense?;
12. has the complainant informed other partners or supervisors of the situation? What response, if any, did complainant receive from these individuals?;
13. ascertain the impact that the alleged conduct had and is having on the complainant physically and emotionally;
14. ask complainant what action s/he would like the firm to take as a consequence of the objectionable conduct;
15. ask complainant if they feel safe/comfortable in the workplace as it is and if they can perform their job;
16. when first interviewing the person whose conduct caused offense, remind him/her of the firm's policy against retaliation for making a complaint of objectionable conduct;
17. advise person whose conduct caused offense who the complainant is and the conduct complained of;
18. confirm all information and obtain any additional facts and information;
19. interview all witnesses;
20. remind the complainant, person whose conduct caused offence and any witnesses not to discuss the complaint with anyone in the firm as it is under investigation.

Decision by [Managing Body of Firm]

The [managing body of the firm] will determine, based on the Investigation Report, whether the complaint has been substantiated or not. When the complaint has been substantiated, the [managing body of the firm] will determine the appropriate discipline, advise the person whose conduct caused offence and ensure that the discipline is implemented and carried out.

Complaint is Substantiated

Where the investigation results in a finding that the complaint of workplace harassment is substantiated, the outcome of the investigation, and any disciplinary action, will be recorded in the firm's personnel records relating to the person against whom the complaint was laid. These written records will be maintained for [10 years] unless new circumstances dictate that the file should be kept for a longer period of time.

Complaint not Substantiated

Where the investigation results in a finding that the complaint of workplace harassment is not substantiated, all record of the complaint shall be removed from the firm's personnel records relating to the person against whom the complaint was laid and the record of the complaint in the firm's complaints file shall clearly so indicate.

False Accusations

1. If an investigation results in a finding that the complainant falsely accused another of objectionable conduct knowingly or in a malicious manner, the complainant will be subject to appropriate sanctions, including the possibility of termination, and the investigation results as well as the sanctions will be recorded in the firm's personnel records relating to the complainant.
    

Informing Complainant

The complainant will be informed of the outcome of the investigation and any disciplinary action taken by [the managing body of the firm]. If the complainant is not satisfied with the outcome of the investigation or the disciplinary action, the complainant will be reminded of the continuing right to file a complaint with the Law Society of Alberta or the Alberta Human Rights and Citizenship Commission.

Report by Colleague

Where a person believes that a colleague has experienced or is experiencing workplace harassment and reports this belief to an advisor, the advisor shall meet with the person who is said to have been subjected to workplace harassment and shall then proceed in accordance with paragraph 2.6.

Harassment by Outsiders

member or employee of the firm who considers that she or he has been subjected to workplace harassment by a person who is not a member or employee of the firm should seek the advice of an advisor. The advisor will take whatever action is necessary to ensure that the firm fulfils its responsibility to support and assist the person subjected to such harassment.

Time Frame for Reporting Complaint

The firm encourages a prompt reporting of complaints so that rapid response and appropriate action may be taken. However, due to the sensitivity of these problems and because of the emotional toll such misconduct may have on the individual, no limited time frame will be instituted for reporting objectionable conduct complaints. Late reporting of complaints will not in and of itself preclude this firm from taking remedial action.

Conclusion

[firm name] developed this policy in an attempt to ensure that all its members can work in an environment free from objectionable conduct. The firm will make every effort to ensure that all its personnel are familiar with the policy and know that any complaint received will be thoroughly investigated and appropriately resolved.

ENDNOTES

1. The response of an employer to a complaint of harassment can include either informal attempts at resolution of the complaint and the problem or formal investigation of the complaint with disciplinary action where the complaint is substantiated. The components of a resolution or discipline can vary greatly, the key being both to address the problem and ensure a safe and comfortable workplace in the future. The employer must be fair and just to all of its employees, both the complainant and the alleged harasser included. The range of resolution or discipline options may include:

• advising the harasser of the impact of his/her conduct on the complainant;
• an understanding or promise not to conduct himself/herself that way any longer;
• an oral or written apology;
• an oral reprimand;
• a written reprimand delivered to the harasser and recorded in his/her personnel file;
• enrolment in an interpersonal skills, anger control or conflict resolution course;
• referral to counselling;
• transfer or reassignment of either complainant or harasser;
• probation;
• withholding of promotion/partnership;
• demotion or removal from specific committees or responsibilities;
• suspension with or without pay;
• dismissal, termination of employment or expulsion from partnership;
• financial compensation to complainant for expenses incurred due to harassment;
• financial compensation to firm for expenses incurred for counselling and/or for compensation paid to complainant for mental anguish and stress;
• in-house harassment workshop with mandatory attendance by harasser;
• reinstate the complainant;
• compensation to complainant for lost wages or a severance package;
• provide complainant with a letter of reference, positive referral and assistance in securing another position where possible;
• ensure any necessary access to employment insurance not denied;
• compensation to complainant for psychological/emotional stress.

The success of the policy depends on the individuals appointed as advisors and investigators. For example, complaints of sexual harassment will frequently concern matters about which people will be sensitive, uncomfortable and embarrassed.

Each advisor and investigator must be highly respected within the firm. They must be sensitive to the nature of objectionable conduct, especially sexual harassment, and its effects on those who are harassed. They may have to act as counsellor to some complainants. They must be able to discuss a complaint with the person against whom the complaint is made regardless of the person's seniority. All advisors and investigators must be worthy of trust and be persons who will observe strict confidentiality.

There must be a least two advisors under the policy as some complainants may feel uncomfortable in approaching a particular advisor. As well, advisors themselves are not immune from complaints of objectionable conduct.

It is recommended that there be at least one advisor of each gender. The firm may also wish to consider appointing advisors from different levels of staff and seniority, for example, a member of the support staff, a senior associate and a partner.

The position advanced in this policy is based partly upon the principle that the employer has a legal obligation to investigate all complaints of objectionable conduct. There is a degree of flexibility accorded to an advisor, however, in deciding whether to proceed with an actual formal complaint when doing so would contradict the wishes of the complainant. An example helps to illustrate the desirability of such flexibility:

Suppose that a person, with no intention of offending, makes sexist jokes which cause embarrassment to someone. This may constitute sexual harassment under the definition in this policy. The person who was embarrassed believes that the joker is unaware of the discomfort caused; would like the joking to stop; but feels uneasy about approaching the person concerned. The solution is for the person who was embarrassed to discuss the matter with an advisor, and to ask the advisor to take the matter up directly with the person responsible for the joke.

In such case, the policy permits the complainant to bring the facts to the attention of an advisor, with a request that a formal written complaint not be laid and investigated. The person responsible will simply be advised of the effect of the jokes. The policy gives the advisor the discretion to do what the complainant asks. If, however, the advisor is aware that the joker has been advised of the offensive nature of the jokes on another occasion, the policy also gives the advisor the discretion to lay a formal written complaint.

If, in this example, the policy had required the advisor to lay a formal written complaint, the complainant may have felt inhibited from bringing the matter to the attention of the advisor.

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