"Kick Me" Signs: Workplace Harassment

A May, 2013 news story of a lawsuit out of New Mexico, United States, points a spotlight on the need for workplaces to have comprehensive and enforced Workplace Violence and Harassment Policies, as well as established processes for workplace investigations.

The story involves an alleged pattern of workplace harassment which culminated in a juvenile prank where a “Kick Me” sign was attached to the back of a worker at an Intel plant in New Mexico.  According to reports, the sign managed to elicit the kicks from several co-workers and led to the harassed worker complaining to both Intel HR and the police.  Media reports claim that two of the offending co-workers have been both fired and also convicted on the charge of misdemeanor battery.  Of grave concern to Intel, the harassed worker has now filed suit against the company in US Federal Court relating to the harassment, claiming that the company did not do enough to stop it.

Here is some coverage of the story:

http://www.businessinsider.com/chip-worker-suing-intel-in-federal-court-2013-5

This story demonstrates how important it is to have a workplace which not only seeks to stop these sorts of incidents from even happening, but which has policies and programs in place to respond when they do, as well as a workplace investigations process which can determine the organizational response.

In Ontario, Occupation Health and Safety legislation requires that employers have both workplace harassment as well as workplace violence policies in place, as well as programs to implement those policies.

According to the Occupational Health and Safety Act (as revised by Bill 168 in 2010):

Workplace violence means:

  • The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker
  • An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker
  • A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Workplace harassment means:

  • Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Policies and programs

Employers must:

  • Prepare policies with respect to workplace violence and workplace harassment,
  • Develop and maintain programs to implement their policies, and
  • Provide information and instruction to workers on the contents of these policies and programs.

Workplace violence programs must include measures and procedures for:

  • Summoning immediate assistance when workplace violence occurs or is likely to occur, and
  • Controlling risks identified in the assessment of risks.

Both workplace violence and workplace harassment programs must include measures and procedures for workers to report incidents of workplace violence/harassment and set out how the employer will investigate and deal with incidents or complaints.

In addition to complying with Occupational Health and Safety requirements regarding workplace harassment and workplace violence policies and programs, a workplace should have a well established process for conducting workplace investigations.

A workplace investigation is a process, conducted by either the employer or on behalf of the employer, usually in response to an allegation or complain of improper workplace conduct.  The investigation is a fact finding effort and ultimately should enlighten and support decisions made by the employer.  The investigation may lead to disciplinary action, mediation, coaching, training, apologies, warnings or even suspensions or terminations.

Organizations should have a process for determining the initial reaction to an incident or allegation, including whether to proceed with an internal investigation or whether to engage an outside investigator.

Take Aways:

In Ontario, all employers are required to have both Workplace Harassment and Workplace Violence policies AND programs to implement those policies;

-Creating a workplace culture where those policies are known and accepted by the entire organization is the best way to mitigate employer risk of allegations of a hostile workplace; and

-Employers should have a plan in place for how to proceed with workplace investigations to respond to allegations of harassment or violence.