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ArtistProducerResource.com is a free, searchable online encyclopedia of information, resources, tools, and templates for producing independent performance work in Canada. For video and resources, visit Generator's YouTube channel.

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Accountability Processes

An accountability process occurs when members of a community organization respond to harm that has occurred. Every accountability process is different — some of them have the aim of repairing a relationship that has fractured, some have the aim of protecting a person who has been harmed, some have the aim of defining what happened and who is responsible, and some have the aim of engaging with a person who has been violent and asking them to change their behaviour.


Why, as an artist/artistic producer, are accountability processes relevant to you and/or your organization?
Most artistic work is, in some way, collaborative. Because you work with other people, you will likely encounter situations of interpersonal conflict — and, in some cases, this conflict will escalate into the territory of harassment, bullying or other forms of harm. Any group working together has to find ways to prevent this kind of harm, and ways to respond to it when it does occur. This is important ethically, but it’s also extremely important for artistic output! Individuals cannot produce their best work if they are afraid.

If you are paying people to work with or for you, you have an additional layer of legal responsibility. In this case, you are responsible for ensuring that your workplace is a safe one. Harassment, bullying, discrimination, and other forms of interpersonal harm threaten this safety, and your organization can be held liable for this.

Organizing accountability processes

Accountability processes can be community-based, or institutional. Community-based accountability processes occur in neighbourhoods, collectives, faith groups, community gardens, music scenes, activist infoshops and other community or social structures. Institutional accountability processes occur when there is a formal or legal body involved — an organization, a non-profit, a church, a co-operative, a school, or similar.

If you are participating in an accountability process, it’s important to understand whether it is a community-based or institutional accountability process. Institutional processes are governed by legislation, so they are generally much less flexible, and have a different range of potential consequences.

Institutional Reporting Processes

Every workplace in Ontario is required to have a sexual harassment policy that includes a clear pathway to reporting. (Check out our page on creating a Harassment Policy to learn more). Similarly, workplaces and employers are prohibited from discriminating against employees based on identity (race, gender, sexuality, and other protected identity grounds, as outlined by the Ontario Human Rights Commission). The harassment and discrimination policies must be made visible to employees.

If a report is made about harassment or discrimination, all employers have the responsibility to investigate the report. (See below on the different options for investigating.) If an employer is made aware of harassment or discrimination and they do not investigate, the employer can be sued for violating health and safety standards.

In most organizations, the pathway is typically this:

  • A person discloses experiencing harassment or discrimination. This can happen either verbally or in writing. Once the person tells someone with governing authority (a manager, member of senior leadership, Board Member), it becomes a report.
  • The report is assessed by the Board, Director of HR and/or Executive Director. It should not be assessed by anyone named in the report, because of a conflict of interest. The purpose of this assessment is to develop a plan of action to respond (the next section provides a list of different options for responding).
  • An investigator or mediation (also known as alternate dispute resolution, or ADR) facilitator is chosen to lead the process. There are lawyers who specialize in workplace investigations; there are also educators, mediators, equity consultants and social workers who perform this function.
  • The investigator or mediator carries out either an investigation or a mediation/ADR process.
  • An investigation will produce a report of findings, which is shared with the person who reported and the person whose conduct was investigated. This summary of findings is then turned over to the Board, Executive Director and/or Director of HR, who will decide on consequences.
  • An ADR process will also produce a report that details the conditions to which parties have agreed. Who gets to see the full details in the report depends on the organization. Most organizations will share the summary of findings (ie, what an investigation uncovered or what an ADR process involved) with the person who was harmed, but many will not share the outcome (ie, what was done in response) because of privacy concerns. Where possible, organizations should decide in advance what their policy is on sharing final outcomes, and inform all employees, so that people are aware of what they will or will not be told at the endpoint.

Investigations and Alternate Dispute Resolution/Mediation

Under current workplace safety and human rights legislation, employers must investigate reports of harassment, abuse or discrimination. The exact definition of ‘investigate’ is not clear within the legislation — increasingly, employers interpret the legislation to mean that every report of harassment must be independently investigated by a workplace safety lawyer. Some employers will investigate reports internally. And still, others offer mediation or alternate dispute resolution as an option.

Ultimately, whatever solution is chosen, the outcome needs to be that the workplace becomes safe once again. Below is a summary of each option.

  • External investigations: these are typically conducted by lawyers who are specialized in workplace harassment or violence. An external investigation is intended to be a neutral and unbiased finding of fact. It is often chosen when a person in senior leadership is involved, when the harm is physical, and/or when there is a suspected larger pattern of harm. The investigator will speak to whoever is willing to participate, pull together a summary of findings, and present the summary of findings to the employer. (A person can be required to by their employer.)
  • Internal investigations: these are typically done by an HR professional, or sometimes a Board member. Internal investigations are often chosen because the harm being addressed is perceived as less serious; they are also cheaper than hiring an external professional, and as such are more common in the non-profit world. Internal investigations, similarly, produce a finding of fact which is then submitted to the highest authority within the organization, who is tasked with deciding what to do.
  • Alternate Dispute Resolution or Mediation: this is an option that is typically offered in cases where the harm is non-physical, does not involve a person in senior leadership and where there is no reason to suspect that the harm is part of a larger pattern. ADR is not a finding-of-fact process--it is about finding a way to resolve the issue and for all parties to see a way forward. ADR includes restorative and transformative justice methods. It can be conducted in person, or via letters. An ADR practitioner is typically contracted by the organization, and they work with the affected individuals and groups to develop a workable future solution.

All three options need to produce a written document that outlines the steps that were taken and the conclusions that were drawn. It is important to clarify who will have access to this document — some employers will allow the targeted person to see the final summary of findings regarding their case, and some will not. Sometimes, summaries are made public, especially when the harm has been egregious or ongoing. The concern about sharing summaries tends to be two-fold: first, there are often concerns about organizational reputation; and second, there are concerns about libel or otherwise violating the privacy of people named within the report. When you are drafting contracts for employees, it can be helpful to add a clause that explains what your organization will do if harassment investigations occur.

The responsibility to investigate within the workplace safety and human rights legislation is a controversial thing, because it does not take into account the consent of the person experiencing harm. That means, a person can disclose harm and the organization can then embark on an investigation, without the person’s consent. The legislation is unclear about which forms of harm can be addressed via alternate dispute resolution. The legislation also does not mandate particular consequences, which means employers retain the discretion to, for example, keep employees on staff even despite investigations that indicate harm occurred. Finally, though institutional reporting processes are supposed to be confidential, they are not anonymous--this means that the person whose conduct is at issue has the legal right to know who made the report and the details of the behaviour being reported.

Things to consider when building a reporting process

  • How can you make your process as transparent and easy to understand as possible? Consider infographics and other accessible visuals that can be accessed online or otherwise anonymously
  • Do you want to use an online mechanism to provide an identity shield? This allows people to communicate with you via a platform that keeps their identity protected unless/until they choose to reveal it. This is one method for allowing targeted people more autonomy and choice in the process. Some options are AllVoices, Vault and TalkToSpot.
  • How many pathways do people have? Can they submit their report to you via email, phone, verbally?
  • How long can people expect to wait to hear back from you? Many organizations are committing to 48h response periods and concluding investigations within a month.
  • Who in the organization will be the point person for receiving and responding to reports? How will you communicate this to everyone? Is there another person who can step in, should this point person be involved in a report?

Check out our page on creating a Harassment Policy for more resources and information on Harassment policies and reporting processes. 

Community-based Accountability Processes

Community-based processes are much less rigidly defined. In some cases, communities have ancestral practices around accountability that give a shape and structure to how accountability processes are done. (For example: many Indigenous people from Turtle Island have circle practices that are used to understand and repair harm that has occurred; and Jews have the month of Elul built into their calendar, a period of reflection and soul-searching, as well as the High Holiday of Yom Kippur, which is about atonement.)

Within more recently-developed communities (such as music or art scenes and activist communities), accountability processes tend to be more free-form and can look very different. Because community-based processes are so diverse, it’s difficult to describe them as a whole, but they do tend to have the following characteristics:

  • They are usually collectively organized, which means there is usually a small group of people organizing and facilitating the process, rather than a solo mediator or facilitator;
  • They also are typically voluntary and occur based on the consent of all parties;
  • Because of the two points mentioned above, community-based processes can take months or even years;
  • They are generally directed by efforts to heal and transform harm, rather than efforts to punish or identify who is to blame; and
  • They almost always avoid working with police or other state authorities.

Sometimes, there are established groups that are familiar with designing and facilitating community-based accountability processes (for example, the Bay Area Transformative Justice collective, the third eye collective, CoSA and Community Justice Initiatives). In that case, people can reach to these bodies for support in initiating an accountability process. Often, however, these organisations are over-capacity or simply don’t exist above-the-radar locally, so the first task is to build or surface a network of folks who are willing to share in and support the work of a community accountability process. Once this group (sometimes called a circle, a pod or a support group) is established, focus generally turns to identifying what is needed in order to transform or repair the harm.

Community-based accountability processes are very diverse and one-size-fits-one. To read some case studies/examples, you can check out the following resources:

 

Responsibilities of an organizational structure vs. a collective of individuals

If you employ people, your options are different from if you are a collective, voluntary group or otherwise are not in an employing role. This is because, as an employer, you have a legal responsibility to protect your workers.

If you are a collective, you have the leeway to follow the lead of the person(s) who have been harmed and not worry about potential legal ramifications. Some examples of supports that a collective can offer are:

  • The opportunity to have ‘first dibs’ to work on projects before the person who harmed you has the opportunity;
  • The right to know if the person who harmed you will be at an event;
  • Fundraised money for healing services, from therapy, to bodywork, to whatever else the person needs;
  • Support in engaging with the person who harmed you in a dialogue; and
  • Support in developing a piece of art that expresses your experience.

If you are an employer in the arts, you likely also have a Board of Directors. Typically, harassment cases are brought to the attention of the highest leadership in an organization—usually the Executive Director and the Chair of the Board (and the Director of HR, if there is one). It is up to these folks to decide how to proceed.

Most organizations start by consulting a lawyer. This is understandable, given the legal responsibilities of being an employer. However, lawyers also have a vested interest in the matter—they profit from investigations, so their advice tends to be to move immediately in that direction. It is a good idea to consult with a variety of resources, including lawyers but also including:

  • Someone trained in alternative dispute resolution;
  • Someone with a mental health background; and
  • Someone with HR expertise.

 

Financial costs

All responses — institutional and community-based — tend to be time and energy intensive. As such, the cost of time is absolutely one to consider and plan for, for all parties.

Formal investigations cost anywhere between $2,000CAD and $50,000CAD (for very large processes). The average investigation by a lawyer costs between $10,000CAD and $12,000CAD. This should be weighed against the cost of engaging a labour lawyer — if your organization does not respond to a harassment report, you can be held legally responsible by the targeted person.

Community-based processes are typically done on a volunteer basis. If you have funding, most skilled process facilitators have years of experience under their belts, and should be paid comparably to mediators, therapists and other healing practitioners in private practice. In Toronto, that is roughly $150CAD per hour. It is difficult to estimate how many hours a community process will take. It is advisable to begin with an estimate of 50h and ensure that everyone involved knows the availability of hours and resources.

Possible funding avenues

Unfortunately, there is no current body of funding available to support accountability processes in the arts. (Or in any sector.)

As such, organizations need to either shoulder the costs from their operational funding — if they have it — or fundraising resources. Options to consider are:

  • Kickstarter or other crowdsourcing options—this may seem like bad publicity, but if your organization is trying to find money to “do the right thing” and is willing, to be honest about it, it may be something your community is willing to support you in;
  • Fundraiser events—these can be done proactively, in collaboration with other organizations, to create a pot of money that will be available to all organizations in order to work on issues of safer space as needed; and
  • Arts funders—if you have a good relationship with a granting officer, you can approach and ask if a given foundation would be willing to support your organization in becoming a safer space.

 

Additional resources

Head back to the Harassment landing page for crisis resources, training and education resources, relevant campaigns, and movements, and a list of legal support and mediation services for artists living in Toronto/Ontario.

Read Generator's blog post on Transformative Justice (TJ), the framework we used for our 19/20 pilot project Transform Dance. The blog post provides some case studies and answers to common questions that people have about TJ.

 

 

Created by kpalm. Last Modification: Friday September 10, 2021 14:06:20 EDT by kpalm.