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Is Anti-Harassment Training Effective? Try Something Different
& How the BC Human Rights Tribunal Dismisses Complaints of Sexual Harassment
There are two parts to this!
Part I looks at the latest research on the effectiveness of Anti-Harassment training in workplaces.
Part II examines how the BC Human Rights Tribunal dismisses complaints of sexual harassment.
Part I: Is Anti-Harassment Training Effective? Try Something Different
Since 2017, I’ve conducted training on identifying and addressing workplace harassment. Participants mostly seemed to enjoy the training and the conversations that it generated, but has it helped with promoting diversity in those workplaces?
Getting to Diversity: what works and what doesn’t, by sociologists Frank Dobbin and Alexandra Kalev, summarizes the latest academic research on the impact of anti-harassment training on diversity and its overall effectiveness. In addition to conducting interviews with human resources managers and diversity experts, Dobbins and Kalev looked at how various diversity and inclusion initiatives at over 800 American companies affected the proportion of diverse people in management positions.
According to their research, providing anti-harassment training to employees decreased the diversity of companies’ management. Specifically, it led to a reduction of white women, Black women and Asian-American men in management positions.
Dobbins and Kalev’s research suggests that anti-harassment training is ineffective when it is overly “legalistic”. When anti-harassment training emphasizes liability risks for the employer or compels participants to identify specific behaviours that meet the legal definition of harassment or discrimination or focus on their biases, participants often feel resentful and disengage. This type of anti-harassment training makes participants feel like they are the problem and that they need to change their biases and behaviours to stop themselves from doing something wrong. Participants also feel like their employer is training them to protect itself against legal and reputational harm, not because it wants to create a positive work environment.
It was helpful to hear this perspective from these researchers, but it wasn’t the first time I had heard it. During one of my more memorable anti-harassment training sessions, some participants told me that it was unfair that they had to attend my training session when their concerns about harassment by members of management, leadership, and their clientele had not been addressed. They said that they felt like they were being blamed for the harassment that they experienced.
Dobbins and Kalev claim that people are more engaged when anti-harassment training focuses less on participants’ biases - how they are the problem - and more on how they can actively solve the problem of workplace harassment. They point to two types of training that do this - cultural inclusion and bystander intervention training. These two types of training provide participants with instruction on how to create workplaces that value inclusion and respect, and how to intervene when someone behaves in a way that is contrary to those values. Their research found that when these types of training are delivered to managers, it increases diversity in management.
It’s relatively easy to summarize legal rules and respectful workplace policies in a two-hour training session. That kind of training can help raise awareness about workplace harassment and teach participants about the policies that govern their behaviour. Talking about ways to ensure people feel included, and doing exercises to practice those skills, requires more time, discussion, and engagement. In my experience, this kind of training is often seen as something “extra”. But according to Dobbins and Kalev, it’s essential.
So I’ve created a course specifically for managers that focuses on cultural inclusion and bystander intervention, and reviews issues related to harassment in the context of managing interpersonal conflict. It’s designed as a “train-the-trainer” course to give managers the tools they need to have open conversations with their direct reports about these topics. This helps managers weave these concepts into their day-to-day work rather than compel their direct reports to attend a one-time anti-harassment training session where they might feel disengaged and resentful.
The course consists of four 2-hour training sessions to be delivered over a 4-6 month period. By conducting the course over an extended period of time, managers can document their progress through ongoing surveys, which are part of the course curriculum, and reinforce what they learn.
Each session will cover one of the following topics:
Establishing Workplace Values
Managing Interpersonal Conflict
Yes, it’s a bigger investment of time and resources. But in my experience, managers often lack experience with these topics. Even if they don’t lack experience, they usually appreciate more guidance on them. More importantly, if research suggests a better approach to improving workplaces, it’s probably time to do something different.
Part II: How the BC Human Rights Tribunal Dismisses Complaints of Sexual Harassment
Many decisions from the BC Human Rights Tribunal involve applications to dismiss complaints of human rights violations. For these applications, Tribunal members have to parse through complaints and determine whether the allegations contained in those complaints, assuming that they occurred, demonstrate a potential violation of the BC Human Rights Code.
These decisions are helpful resources when clients ask me to do a “threshold assessment” to determine whether a full-blown investigation into a complaint is necessary. If the allegations contained in a complaint, assuming that they occurred, do not amount to a violation of legislation or policy, an investigation may not be necessary.
Here are two similar complaints of sexual harassment before the BC Human Rights Tribunal where Tribunal members came to different conclusions about whether the behaviour alleged could amount to sexual harassment. These cases shed light on what is needed to formulate a complaint of sexual harassment and whether a superior can express a romantic interest in a subordinate in a workplace (as I’ve said in my training sessions - best to not do it).
Case 1: Byelkova v. Fraser Health Authority and another, 2019 BCHRT 118
In this case, the Applicant alleged that her superior made sexual advances towards her and initiated a disciplinary investigation against her as retaliation for rebuffing these advances.
Here are the sexual advances that the Applicant identified:
In December 2016, at the staff holiday party, the superior asked the Applicant, “Isn’t your mister supposed to get you a drink?” After she told him that there was no “Mister”, he insisted on paying for her drink.
On various occasions, the superior would make a point of stopping at the Applicant’s work station to chat. He would sometimes ask if she had any plans after work or if she had already taken a break. One time, he suggested she could come with him to Tim Hortons on her break and, when she said she was too busy, he offered to bring her a coffee.
In June 2017, the Applicant was jogging when her superior pulled up alongside her in his car. He complimented her on her looks and said that most people of her Slavic background were beautiful. He also told her that she reminded him of a particular Bollywood actress and then asked her to hang out with him after work. She told him that he was making her feel uncomfortable and reminded him that he was married and that she was in a new relationship. He responded to this by punching something in his car and then speeding off.
Interestingly, the Tribunal member determined that the Applicant was not arguing that these alleged sexual advances themselves constituted sexual harassment; rather, the Tribunal member believed that the Applicant brought up these events only to convey that the disciplinary investigation that occurred afterwards was retaliatory because the Applicant rebuffed these sexual advances. As a result, the Tribunal member did not consider whether these incidents, on their own, constituted sexual harassment.
It seems as though this determination was based on the following paragraph in the Applicant’s submissions before the Tribunal:
I will elaborate that asking a female (or a male, for that matter) out on a date does not constitute a sexual harassment; there is nothing abnormal about such action. In fact, there were other male colleagues who have openly asked me out.1
The BC Supreme Court reviewed this decision and found that, despite what the Applicant stated above, the Tribunal member’s failure to determine whether these incidents amounted to sexual harassment was patently unreasonable.2 When the matter was sent back to the BC Human Rights Tribunal for reconsideration, the same Tribunal member found that the events described above could amount to sexual harassment.3
Case 2: Lin v. Starbucks Coffee Company (Canada) and others, 2022 BCHRT 87
In this case, the Applicant alleged that her superior made sexual advances towards her and that she was not considered for a management position even though she was qualified for the role.
Here are the sexual advances that the Applicant identified:
From December 2018 to March 2019, the superior touched the Applicant’s hands frequently while pretending it was an accident and on one occasion touched her waist. On one occasion she said to him, “You are a guy, go do what guys should be doing, instead of touching touching,” and he laughed.
On December 28, 2018, the Applicant’s superior told her that he “has the charm” and held her hand “while gazing at [her] with a mysterious and proud smile.”
On March 12, 2019, the Applicant’s superior told her that she had “a presence of a sexual deviant” and tried to shake her hand.
On March 18, 2019, after the Applicant told her superior that she only wanted to talk about work, he said that he liked her and felt a “synergy” between them and that he wanted to develop a relationship with her.
On March 19, 2019, while the Applicant was with her superior at a bus station at the end of a closing shift, he asked her how she felt, and when she responded that she felt nothing, he said, “I feel excited,” then tried to shake her hand.
On March 20, 2019, the Applicant’s superior tried to chat with her about topics that were unrelated to their work while she was on a break.
On March 27, 2019, when the Applicant said, “I’d better find a Jewish man for the purpose of living a quality life while doing better business,” the Applicant’s superior responded, “You need to find a Jewish man just like me, a Capricorn.”
On April 7 or 8, 2019, after the Applicant left a meeting, her superior smiled at her and offered to make her a drink.
The Tribunal member dismissed this complaint for the following reasons:
Not each and every one of the above allegations could reasonably be considered sexual. Specifically, the Tribunal member said that “chatting” about unspecified non-work matters, shaking a hand, expressing a feeling of “synergy”, suggesting that the superior was “feeling excited”, and offering to make a drink for the Applicant, were acts that were not necessarily sexual.
There was not enough information about the context of each incident, including the ones related to inappropriate touching and the “sexual deviant” comment, for them to be taken seriously.
Overall, these incidents, even if they occurred, would not have had a detrimental impact on the Applicant’s work environment.
It’s difficult to see how Case 1 demonstrates a possibility of sexual harassment and Case 2 doesn’t. Both contain sexual advances by a superior towards a subordinate. In Case 1 the superior asked the Applicant to hang out with him after work. In Case 2 the superior told the Applicant that she needed to find a Jewish man just like him in order to live a “quality life”.
To me, both cases contain enough information to suggest a potential violation of human rights legislation and should be investigated. Indeed, the employer in Case 2 conducted an internal investigation in which they likely obtained additional information about the context for the comments alleged, but the employer found that the complaint was unsubstantiated.4
If an investigation was to be done for Case 1, it would be helpful to have the Applicant explain why she thought it would be acceptable to have male colleagues ask her out (as she wrote in her submissions) but not this particular male colleague. The answer might be that she found it uncomfortable to be asked out by her superior because he was her superior, but it would be better to hear her answer than assume what it might be.
My guess as to why these cases were decided differently? The Applicant in Case 1 (eventually) had legal counsel. The Applicant in Case 2 did not.
Byelkova v Fraser Health Authority, 2021 BCSC 1312 at para 36.
Byelkova v Fraser Health Authority, 2021 BCSC 1312 at paras 81-85.
Byelkova v. Fraser Health Authority and another (No. 2), 2021 BCHRT 159.
Taagholi v. Commissionaires BC and another, 2022 BCHRT 101, is another case involving a self-represented Applicant where a complaint was dismissed because it did not provide sufficient context for the four allegations of sexual harassment. Nevertheless, the employer conducted an internal investigation into the complaint.