As the news brings daily revelations about workplace harassment, and in particular sexual harassment, we continue to think about additional tools employers and other institutions can leverage to combat the problem.

At Rubin Thomlinson, we believe that one of the most invaluable and underutilized tools that employers have in their workplace harassment tool kits is the “workplace bystander.” This belief is supported by the results of our spring 2017 survey on the subject matter.

“Workplace bystanders” are useful, in large part, because there are so many of them. Through our survey, we found that 79 per cent of respondents had personally witnessed or heard about harassment and discrimination in their workplace. A recent American survey found that 41 per cent of men had witnessed sexual harassment in the workplace.

This data suggests that while incidents of sexual (and other forms) of harassment go unreported, these incidents are often not unknown to the broader workforce. Indeed, these surveys suggest that problematic behaviour such as sexual harassment is often known to co-workers and colleagues. This is also borne out by our investigation practice. Over the years, we have interviewed many witnesses who knew what was going on in terms of a respondent’s conduct towards a complainant, but did not take steps to intervene. In fact, some of the worst cases we have investigated were described by those we interviewed as “open secrets” in the workplace.

The pivotal question is: How do we motivate these bystanders to act? If we understand what motivates a bystander to become involved, we can tap into this motivation to encourage bystanders to step in.

In order to better understand bystanders, we have canvassed the case law for examples of situations where intervention by a bystander played some role in the complaint in question — similar to the case of the Brampton firefighters which was featured in a previous blog article. This search for relevant case law was not an easy task. For the most part, cases reference the substance of the complaint and not the mechanism through which it became known to the employer. As such, the role of the bystander is seldom referred to explicitly in the case law. Nevertheless, with the excellent assistance of my colleague Will Goldbloom we have found three cases from across the country that are worthy of consideration.

Chartrand v. Vanderwell Contractors (1971) Ltd. (2001 AHRC 1)

This decision of the Alberta Human Rights and Citizenship Commission relates to the adequacy of an employer’s response to allegations of sexual harassment in the workplace.

In this case, the complainant was subject to sexualized language and touching by a co-worker on her shift. The complainant mentioned this behaviour to her shift supervisor who, in turn, reported it to the head supervisor on more than one occasion.

Ultimately, the Commission concluded that the respondent had failed to effectively deal with the harassment. At the hearing, the shift supervisor acted as a witness for the complainant and corroborated her allegations.

Tyler v. Commissionaires BC (2017 BCHRT 200)

This is a decision from the British Columbia Human Rights Tribunal, which we discussed in a recent blog.

In this case, a male colleague was zooming in on the breasts of the complainant using a security camera. Although the complainant was unaware that this was happening, the behaviour was observed by a number of her colleagues. In response, the colleagues did not report the incident to management but did inform her that the sexual harassment was occurring. Based on this information, the complainant made a formal complaint about the conduct to her employer.

Kitchener (City) v. Kitchener Professional Fire Fighters Association (2008 CanLII 1830 (ON LA))

This is a 2008 arbitration decision about whether or not termination of a fire captain for cause was justified.

According to the decision, a 46 year-old fire captain was terminated for cause for subjecting a 24 year-old female firefighter to inappropriate/sexual conduct in, what the arbitrator described as, the “male-dominated environment of a municipal fire department”.

In the context of examining the circumstances surrounding the termination, the decision describes how the harassing behaviour became known to the employer. According to the decision, the behaviour was reported by a third-party firefighter who observed the harasser’s physical proximity to the female firefighter during a training session. In addition to reporting the behaviour, the third-party firefighter also accompanied the subject of the harassment to her discussion with senior management.

These cases show that bystanders can and will act in certain circumstances. The key is to convert their knowledge of problematic circumstances into action.

Based on our research and the results of our survey, it seems that one of the main reasons why witnesses to harassment do not intervene is because they are unsure about how to act and are fearful of the potential repercussions of their involvement. Many people do not realize that there are a number of ways to stand up to problematic behaviour without having to confront the harasser in the midst of the harassment.

As illustrated by the bystanders in the cases above, there is a wide range of ways that a bystander can intervene on behalf of someone who is being harassed. Among other things, bystanders can complain about the behaviour that they witness to their supervisor or manager or make a report using a confidential hotline. They can support the subject of the harassment through the complaint process or after the fact. They can participate in an investigation and help to corroborate a complainant’s account of harassment during the fact-finding process.

In order to encourage bystanders to become involved more regularly, employers should make sure that they are explicitly referenced in their policies (NOTE: This was not the case for 50 per cent of the organizations represented in our survey). Prospective bystanders must be able to see that there is a role carved out for them and the appropriate protections. Internal policies should also reference the range of strategies available to bystanders so that they know the options available to them.

To this end, bystanders must also be provided with appropriate training. This training should cover intervention strategies so that even the most risk-averse employee knows that there is something that they can do to make a difference in the workplace.

When it comes to understanding the reasons why bystanders do intervene, we know that the main reason they elect to do so is because “it is the right thing to.”

In many cases, the experience of having witnessed or heard about harassment in the workplace will trigger a bystander’s sense of morality and justice. It will tap into their perception of themselves as upholders of these values. In other cases, bystanders will simply act because they empathize with the target of the harassment.

Knowing that a person’s sense of right and wrong is a key motivator, we can imagine broadening the pool of bystanders who will act by making sure all employees understand how harassment affects their colleagues in the workplace. This means using training to convey how harassment can undermine an employee’s sense of safety and value in a workplace and how demeaning and offensive it is to be the target of this behaviour.  It is not enough to transfer information for the purposes of compliance.  Rather we need to focus on experiential and empathetic training – truly putting people in each others shoes to understand the impact of this behaviour.

We firmly believe that workplace bystanders are an underutilized tool.  Motivating them to act, and giving them an explicit role and a range of strategies may be effective ways to increase their involvement in addressing workplace harassment.

Janice Rubin and Megan Forward

About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.

About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.