Running a nonprofit is a constant juggle: raising funds, managing programs, and making a real difference. The last thing you need is a workplace harassment complaint landing on your desk. Let’s face it, it’s concerning and stressful, time-consuming, and can create a legal mess, damage your reputation, and leave a bitter taste in everyone’s mouth.

Here’s the thing: even with the strongest “no-harassment” policies in place, situations like those highlighted in the #MeToo movement can happen. The best defence for nonprofits? A swift, unbiased investigation that gets to the bottom of the issue and takes necessary action – all while keeping a detailed record of the process.

It protects your organization from the fallout of a poorly handled complaint. It shows your commitment to a safe and respectful work environment for everyone, from staff to volunteers and clients and, most importantly, it’s the law.

Now, you might be thinking, “investigations sound complicated!” But they don’t have to be. Here are some handy resources that will help you:

  1. Investigation Checklist for Employers
  2. Harassment Investigation Form
  3. Employee Complaint Form
  4. Workplace Violence Reporting Form
  5. Witness Statement Form
  6. Workplace Anti-Harassment Policy
  7. Workplace Violence Risk Assessment Questionnaire
  8. Vulnerable Sector Behaviour Management Policy
  9. Vulnerable Sector Check Policy
  10. Vulnerable Persons Policy
  11. First Written Warning letter
  12. Second Written Warning Letter
  13. Final Written Warning Letter
  14. Webinar recording and presentation: Workplace Harassment and Harassment Investigations with Darcy Michaud

The Uncomfortable Truth: Harassment in Nonprofits

Several factors can make nonprofits more susceptible to harassment. The close-knit nature of many teams can blur professional boundaries. Smaller organizations may lack dedicated HR departments, leaving leaders without the necessary expertise to handle sensitive situations. Additionally, the pressure to retain valued employees and the reliance on volunteers unfamiliar with internal policies can create situations where inappropriate behaviour goes unreported.

The reality is, workplace harassment is a problem across Canada, and nonprofits are not immune.  Harassment can take many forms, from verbal abuse and intimidation to social isolation and unwanted advances. It’s important to remember that healthy criticism is a normal part of professional growth, but harassment is unwelcome conduct that creates a hostile work environment. Any employee, volunteer, or contractor may commit unlawful harassment, making your charity legally accountable.

What is Harassment?

Workplace harassment generally involves engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known, to be unwelcome. Harassment can include inappropriate comments, actions, or gestures that demean, humiliate, or offend a worker. It is important to note that harassment can be a single, egregious act or a series of actions. 

Please note that different jurisdictions have specific definitions and requirements regarding workplace harassment.

Sexual Harassment

Sexual harassment, distinct but often overlapping with general workplace harassment, involves unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature. This can create a hostile or intimidating work environment. In many jurisdictions, including Ontario and British Columbia, the bar for sexual harassment is lower for supervisors and managers, especially if there is a perception of quid pro quo—offering workplace benefits in exchange for sexual favours.

Creating a Harassment Policy

Canadian law mandates that employers, including nonprofits, take steps to prevent workplace harassment. A comprehensive harassment prevention policy is your first line of defence. This policy should clearly define acceptable and unacceptable behaviour, outline the complaint process, and detail the organization’s commitment to a safe work environment.

A thorough workplace harassment policy is vital. Key components should include:

  • Clear Definitions: Explicitly state what constitutes harassment, aligning with legal definitions. The definition that’s in your policy should be the definition that’s in the act in your applicable legislation. The definition is important as it is the ‘bar’ that must be met or established for an allegation of harassment to be valid and enforceable
  • Reporting Procedures: Outline how employees can report harassment, including alternative reporting options if the harasser is their supervisor.
  • Investigation Process: Detail the steps for conducting investigations, including timelines and responsible parties.
  • Confidentiality: Emphasize the importance of confidentiality throughout the process.
  • Consequences: Specify potential outcomes and disciplinary actions following an investigation.

Policy Implementation

Ensure that the policy is well-communicated to all employees and that training sessions are conducted to reinforce the understanding and importance of the policy. Regular reviews and updates to the policy may be necessary to comply with changing laws and regulations.

Fairness Matters: Conducting Effective Harassment Investigations

When a complaint arises, a thorough, fair, and confidential investigation is crucial. This process typically involves gathering evidence, interviewing witnesses, and creating a report with findings and recommendations. In situations where a conflict of interest is possible, consider engaging a neutral third-party investigator. Here are a few key considerations for harassment investigations:

  • Duty to Investigate: Employers are legally required to investigate all harassment claims that are not frivolous. This means that any claim which, if true, could constitute harassment must be taken seriously and investigated thoroughly. Not only is there a duty for an investigation to be conducted, but it must also be fair, proper and well done. The bar for what is appropriate in the circumstance will change, based on the circumstances.
  • Safety of the Employee: As soon as a complaint is brought forward, it is the obligation of the Employer, as per the H&S Act/Code to ensure the safety of the employee bringing the complaint. This may result in the employees being separated, a temporary accommodation, a suspension with pay, etc.
  • Punishment Fits the Crime: If an employee is found to have committed workplace harassment, there MUST be a punitive consequence(s). This is not an option. Further, the consequence that is handed down must be appropriate to the severity of the violation. 
  • Confidentiality: At every stage of the process and between all parties involved, all information must be kept confidential. Employees should be instructed not to speak to anyone, whether they be involved in the investigation or not, under fear of consequence.

Investigation Process

  • Initial Steps: Assess whether the parties involved need to be separated to ensure a safe environment during the investigation.
  • Assigning an Investigator: Choose an impartial investigator with the necessary skills. In some cases, especially with serious allegations, a third-party investigator may be appropriate.
  • Collect Statements: Collect a written statement from the accuser. Inform the accused person of the allegation. The best practice is to require a written statement from the accused. 
  • Interviews: Conduct interviews of all parties. The accuser should be interviewed first, after having the written statements of both primary parties. The accused is typically interviewed next, with witnesses to follow. You should constantly be assessing credibility!
  • Collect Documentation and Proofs: Collect all relevant documents, proof, videos, etc. that would assist in making a determination. Be sure to verify the documentation you receive (i.e. emails, text messages, etc.). Verify the authenticity and completeness of all documents and evidence provided.
  • Assessment and Outcome: Evaluate the information collected, assess the credibility of the parties, and decide on an outcome based on the process in your policy.

Investigation Don’ts

  • Never promise the complainant or witness anonymity throughout the entire process.
  • If you must suspend an employee, likely the accuser, never do so without pay.
  • Never sway from the process that has been outlined in the policy or the investigation plan that was developed at the onset of the investigation.
  • An investigation is an unbiased fact-finding mission. Always interview the parties to the investigation, never interrogate. 
  • When making the final decision never do so based on your feelings or what is best for the company in terms of financial, sake of ease, or reputational reasons.
  • Never breach confidentiality when advising the parties of outcomes.

Arriving at an Outcome 

  • When determining an outcome, rely on factual evidence and assess the credibility of sources by examining the consistency and variation of the facts presented. Consider the character of the individuals involved in certain situations. Many allegations can be reduced to “they said, they said,” with limited or no corroborative evidence.
  • This process is not equivalent to a criminal trial. Outcomes will be determined based on the balance of probabilities, meaning what is more likely to be true based on the available evidence. For more serious allegations, a higher standard of convincing evidence is required.
  • All materials gathered during the investigation, including the investigation report, are the company’s property. These documents must be kept confidential, with access restricted to decision-makers only.
  • The investigation report should be thorough and detailed, and must include:
    • summary of the allegation, 
    • all evidence and witnesses interviewed, 
    • the purview under which the investigation is being conducted, 
    • dates, times, locations, 
    • and the conclusion. 
  • Most jurisdictions require that the outcome of the investigation, along with any potential consequences, be communicated to the primary parties involved. This information should be delivered in a summary of the findings.

Remember, a fair and thorough investigation minimizes damage and ensures a just outcome. It shows everyone involved that your organization takes these issues seriously. So, take a deep breath,  investigate properly, and keep your good works untarnished.

About HR Covered: At HR Covered, we have a deep understanding of the critical organisational needs and processes specific to Canadian nonprofits. We ‘get’ your culture, your goals, and what drives you, too. Our unparalleled responsiveness and impeccable service have helped more than 200 nonprofits in Canada to focus on their core activities. We provide a plethora of services including HR Compliance, Legislative Training, HR Documentation, Health & Safety Compliance, HR Legal, HR Consulting and Outsourcing. For more info visit our website: www.hrcovered.com or call us at +1 866-606-0149.