What to do when workplace harassers are members of the public?

Although employers in Ontario have just as much obligation to address sexual and violent harassment from customers or members of the public as they do when it happens between colleagues, the process can be more challenging, according to one legal expert.

“From a legal perspective, the source of the harassing behaviour being a member of the public or customer doesn’t change the statutory obligations at play, which is for the employer to respond appropriately and perform an investigation that is a appropriate in the circumstances,” says Steven Dickie, an associate at Osler Hoskin & Harcourt LLP.

However, it can be tricky since an employer can’t compel the offender to participate in that workplace investigation, he notes. So what are the best practices when dealing with workplace sexual or violent harassment from the public?

Read: What does the film industry’s #metoo moment mean for employers?

“In some cases, if it’s a customer in a retail or hospitality setting, the individual may not even be identifiable after the fact,” says Dickie. “So it may change what an appropriate response may be.”

Employers can consider instituting a buddy system to minimize workers’ chances of being alone when serving the public, he says. And banning particular customers is also a clear option. “It’s about applying the general principles to the circumstances, thinking creatively and taking all reasonable steps.”

Where an individual, such as a delivery person, has a professional connection to an employer but isn’t actually an employee of it, the organization can reach out to the harasser’s company to address the issue. “It could involve writing a letter to the respondent’s employer, setting out the results of the investigation and what was determined and formally noting an objection and requesting that that person no longer serve the business,” says Dickie.

Many organizations are becoming aware that they need to do more for their employees to prevent harassment, says Stephanie Kozelj, a senior consultant for workplace training at Morneau Shepell Ltd. “A lot of organizations are trying to be preventative in putting forward skill development around their people leaders on effectively leading a safe work environment,” she says. “So knowing when to step in, knowing how to have conversations, knowing how to foster an environment where people are respected and where people are starting to consider that what was formerly acceptable, in some ways, is no longer tolerated.”

Read: A workplace guide for the #MeToo era

Employers in the retail, health-care and transit sectors are at an especially high risk of harassment from the public, Kozelj notes. Leaders in those and other public-facing industries need to be able to have real and open conversations with workers, she adds. Creating an environment where employees feel they can trust their leaders takes real effort, so understanding which policies and procedures are in place is key to being able to have those conversations more easily, she says.

But having the right policy in place means a certain amount of soul-searching, according to Glenn French, president and chief executive officer of the Canadian Initiative on Workplace Violence. Harassment can arise in many different scenarios, including by random members of the public, people specifically targeting others and someone in a domestic dispute with an employee, he says. French, however, say organizations still tend to be myopic in their policies as they continue to focus on harassment within their workforce rather than external sources.

Read: N.S. human rights commission to help employers address workplace harassment

In particular, retail workers have a tendency to be more vulnerable as they’re often younger, part-time and more transient, says French. As such, employers must be careful not to be negligent in providing them with the tools and processes they need to protect themselves and each other from harassment. “What does your risk assessment tell you about the kind of vulnerability that these individuals have? And based on that, what is your security plan for these individuals?” Not all organizations actually have a plan in place, he says.

The plan doesn’t need to be complex to be effective, he adds. In one workplace where members of the public have gotten aggressive and even threatening, employees simply knock the phone off the hook if they’re afraid of an individual. If the phone is off the hook for 10 seconds or more, security knows to take action. “It doesn’t have to be sophisticated,” says French.

Read: 40% of employers take reactive approach to workplace harassment: HRPA

As well, there are plenty of instances where employers aren’t following through on legislated safety considerations, he says. French recently spoke to a young man who had been working alone at a gas station and was robbed at gunpoint. “In his jurisdiction, there were laws that would not permit him to work alone, but he was working alone,” he says. “And his employer at that point said, ‘Well, you can take your dog to work, and we’ll make that a second person.’ That’s how some people, albeit few, will think of these things.”

There are a number of questions employees need to have definitive answers to in order to keep themselves as safe as possible in the workplace, says French. “What is their access to help when they need it? What kind of training do they have to manage individuals who are abusive in any way? Do they have the right to terminate conversations or to deprive someone of a service if they’re being abused?

“If a waitress is working in a bar, does [she] have the option — and we know she should — to be able to say, ‘I’m not serving that table?'”

Read: Employers need support handling workplace harassment incidents: CUPE