Effective Workplace
Harassment Investigations
David Ray spent 14 years in the Royal
Canadian Mounted Police, doing
general detachment and commercial
crime duties. He spent 17 years as
director of security for national and
multinational firms. For the past
20 years, he has provided independent
security and investigation consulting
for clients. David has published
A Security Practitioner’s Practical Guide
to the Law (Canada Law Book). He
instructs in Harassment Investigations,
Security Law, Workplace Violence and
Security Management at the University
of Calgary. He holds a BA from York
University and a juris doctor from
Osgoode Hall Law School.
© Business Expert Press 978-1-94944-330-1 (2019)
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David Ray
Abstract: This article assists investigators to conduct ha-
rassment investigations in a manner that will ensure
that they are well planned, complete, and can help the
organization to come to appropriate conclusions and re-
duce the risk of liability to civil actions. It addresses the
nature of harassment and considerations about whether
an investigation is necessary. It also provides sugges-
tions in choosing an investigator and the competency
skills required. The article also provides tools for the in-
vestigator to use in the course of the inquiry and skills
necessary for conducting interviews and ensuring an ex-
cellent investigations process. It provides hints for the
investigator about issues that may come up in the course
of the inquiry and preparation for them. Finally, the arti-
cle addresses the proper way to gather and handle evi-
dence and considerations in preparing a report that will
provide the decision maker with the information.
Keywords: accommodation; evidence; harassment
investigations; internal investigations; interview
skills; planning investigations; reports; workplace
investigations
Introduction
So, you’ve had a complaint of harassment and need to
decide where to go from here. Line managers who be-
come aware of harassment often rationalize reasons for
not undertaking an investigation by telling themselves
that the parties will probably work out their issues on
their own or one of them will quit or transfer. Managers
may also convince themselves that no one else is aware
of the problem or that they will just make things worse
if they intervene with an investigation. Organizations
are often reluctant to undertake an investigation for fear
that it will result in a wrongful dismissal action or the
loss of a productive employee who “makes us a lot of
money.” There are also concerns that the investigation
will lead to negative public exposure for the company
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 Effective Workplace Harassment Investigations
and morale and productivity issues. Some
management teams have the opposite mis-
conception and believe that the only way
to resolve a complaint is with an investiga-
tion. Harassment can have significant costs
including court awards and settlements
and can also affect employee relations,
morale, absenteeism, turnover, and pro-
ductivity loss. Organizations that develop a
reputation as being harassment blind will
find it difficult to recruit talented people.
The fact is that many harassment com-
plaints can be resolved without a formal
investigation (unless they are required by
statute) but those that should be investi-
gated and are not will only result in com-
plaints that fester and result in greater costs
and significant negative consequences in
the end. The cost of not conducting an in-
vestigation when one should be completed
or conducting an investigation improp-
erly can also add to those costs and conse-
quences. Generally, it may be appropriate
for an organization to avoid an investigation
in minor complaints of harassment where
the complainant is willing to settle the mat-
ter with an apology, mediation, or other
form of resolution. Investigation, however,
may be unavoidable in cases where they
involve serious allegations, more than one
complainant, allegations against a senior
person, perceptions of a conflict of inter-
est, credibility, or other complex issues
that require a thorough analysis.
Investigation may also be required where
a formal complaint has been filed with leg-
islative authorities and where the organi-
zation is required to provide a response
to that complaint. Where the investiga-
tion is initiated internally, the investigator
should keep in mind that even if there is
no founded complaint under the relevant
statute or company policies, there may still
be human resource issues that need to be
resolved and the investigator may have a
role in making recommendations to re-
solve those issues.
The organization may have its own in-
vestigation underway but there may be
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parallel actions going on where law suits
have been filed, formal complaints have
been made to legislative authorities, or a
matter has been reported to the police as
criminal. The organization should not fall
into the trap of believing that they must
suspend their own investigation pending
the completion of other actions underway.
Other actions may be resolved based on
a different standard of proof than that ap-
plied in the employment relationship or
may be dismissed for other reasons. For ex-
ample, a criminal action may be dismissed
because of a failure to read the accused
their rights or because a witness was not
available for court. Also, a prosecutor in a
criminal court must establish that the ac-
cused breached a specific criminal statute
whereas the test for whether the respon-
dent may have committed a breach of the
employment relationship is much broader.
Complaints of harassment may come
from third parties who have observed ha-
rassing behavior against another employee
or where a victim of harassment has shared
his or her concerns with the third party.
Where the third party comes forward with
that information, the organization is then
put on notice that harassment may be tak-
ing place in their workplace and they have
a duty to take appropriate action. Similarly,
a complainant may come forward but say
that they do not want the organization to
undertake an investigation. In this case
the organization is also on notice and has a
duty to take action to resolve the issue.
What Is Harassment?
The word “harassment” has a number of
meanings from the common, everyday Eng-
lish meaning, “My supervisor is harass-
ing me by asking me to work late.” Matters
that may require investigation, however,
may fall under a number of other head-
ings. Legislative or statutory harassment is
based on discriminatory behavior. Harass-
ment may be covered in human rights, civil
rights, fair employment, or equal employ-
ment legislation, but may also be included
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 Effective Workplace Harassment Investigations
in occupational health and safety legislation.
Legislation may require employers to con-
duct hazard assessments, have policies and
procedures, provide training, investigate
complaints, protect personal information in
handling complaints, and even provide pre-
cautions for domestic violence issues.
Definitions of discriminatory behavior
or harassment vary from one jurisdiction to
another but statutes generally prohibit dis-
crimination based on grounds such as race,
religion, color, gender, physical disability,
mental disability, age, ancestry, place of
origin, marital status, or sexual orientation.
The investigator should become aware of
the grounds for discrimination for the juris-
diction where the complaint originated.
Complaints related to age in the workplace
are often associated with mandatory retire-
ment issues and complaints related to reli-
gion may relate to requests by employees
for a work schedule that will allow them
to meet religious commitments. A statute
may not address addiction to drugs or al-
cohol as a ground for discrimination but
discriminatory behavior against an em-
ployee with an addiction may be found to
be a statutory discrimination on the basis
of physical disability.
Sexual harassment may also not be spe-
cifically defined by the statute but where
it is not, then a human rights or equal
employment opportunity commission or
board may accept sexual harassment as dis-
crimination based on the grounds of gender.
Many complaints based on the grounds of
gender relate to maternity leave or employ-
ment and hiring practices related to preg-
nancy. Sexual harassment issues may also
relate to discriminatory behavior directed
at employees because of their gender. Sex-
ual harassment complaints are sometimes
related to quid pro quo issues such as a
demand for sexual favors as a condition
for, or right, or benefit of work, “Go along
with me or you won’t get hired, day off,
promotion, transfer, etc.” Some sexual ha-
rassment complaints are “environmental”
or systemic to a work site and may not be
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directed at specific employees but may in-
clude improper verbal or physical conduct
of a sexual nature including inappropriate
comments or jokes or visual displays of de-
grading or demeaning pictures. Examples
of sexual harassment may include:
■■ Unwelcome remarks, jokes, innuendoes,
or taunting about a person’s body or attire;
■■ Unwelcome invitations or requests, whether
indirect or explicit;
■■ Leering or other inappropriate gestures;
■■ Unnecessary physical contact or touching;
■■ Offensive e-mails;
■■ Asking about a co-worker’s sex life or shar-
ing inappropriate personal information;
■■ Repeatedly asking a co-worker to date; and,
■■ Getting unnecessarily close, cornering,
or staring.
Sexual harassment may be verbal or
physical and the investigator must estab-
lish whether the activity would be unwel-
comed in the eyes of a reasonable person.
Many respondents may admit the behav-
ior but argue that they had no intention to
harass or offend but even if their actions
were unintended they may amount to ha-
rassment depending on the severity and
reasonableness.
The second body of grounds that may
require investigation are issues such as
bullying, threats, and abusive behavior.
These may be covered by statute or in the
organization’s policies and they are some-
times referred to as workplace violence,
psychological harassment, workplace ha-
rassment, or disrespectful behavior. Issues
covered may include creating a hostile
work environment, yelling, spreading ru-
mors, intimidation, or other behaviors
that may not be discriminatory under the
statutory protected grounds but are still
inappropriate.
Employers are not only responsible for
ensuring that employees are not the sub-
ject of harassment but also visitors, con-
tractors, customers, consultants, and others
that may be under their roof. They are
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