The times, they are a changin'
Fox Media lawsuit, Ontario's Bill 132 show sexual harassment can no longer be tolerated
Sep 12, 2016
Last week, we learned Fox Media will pay US$20 million to Gretchen Carlson, who has made allegations that she was subjected to sexual harassment.
The next day, Bill 132 came into force in Ontario, creating new obligations for employers designed to address sexual harassment in the workplace.
What do these two events have in common? They are both indicative of the growing intolerance for workplace sexual harassment, as well as the obligation on the part of employers to take reasonable steps to prevent and address sexual-harassment in the workplace.
Like many issues of this nature, it has taken a long time to get to this point. For far too long, sexual harassment was tolerated, and employers often turned a blind eye, particularly when the harasser was either the owner of the organization or one of the "stars." Even after the Jian Ghomeshi scandal broke at the CBC, it was not uncommon for people to talk about their own organizations and identify the person who was well-known within their organization as someone who harassed and abused staff. In most cases, those individuals were seen as "untouchable" due to their role or performance level.
In the Fox News case, reports suggest that the issue may have been known years ago, and we have learned that there were many other victims, but those in charge chose to ignore it. By addressing the issue as they have in recent months, the current leadership has sent a strong message, confirming that sexual harassment will no longer be tolerated, no matter who the perpetrator is. While that situation has nothing to do with Canadian laws, it is certainly indicative of changing societal norms and expectations.
As I have often said, one good thing that came out of the Ghomeshi scandal is that it raised awareness of workplace sexual harassment issues in Canada. As a result, employees were reassured that they do not have to tolerate such conduct, and employers received a message that they could not allow such conduct to tenure within their organization. In addition to legal liability, we have seen several high-profile organizations, including the CBC, subjected to incredibly bad press, which has damaged their reputations.
Bill 132 puts new obligations in place with respect to policies and "programs" to address sexual harassment. Employers in Ontario must have clear policies which set out how an individual is to report an incident of sexual harassment, and in particular, who they should report the incident to if the alleged harasser is the owner or supervisor of the victim. This addresses one of the potential barriers that victims of sexual harassment face: Often, the harasser is their boss, and they feel as though they have nowhere to turn for help.
The new legislation also sets out requirements for policies to delineate how allegations of sexual harassment will be investigated, and how the results of that investigation will be reported. Furthermore, the legislation gives the Ministry of Labour the right to retain a private investigator, at the expense of the employer, if an appropriate investigation is not carried out.
The deadline for compliance is Sept. 8. Our firm has been working with employers to assist them in revising their policies and ensure that they are compliant. Employers across the province are, or should be, working toward this goal. The requirements will not go away, and the reality is that sexual harassment in the workplace will not be tolerated. Employers that fail to take reasonable steps to protect their employees expose themselves to liability, as well as bad publicity and the risk that they will lose their employees and be unable to recruit quality individuals to replace them; simply put, they will not be seen as an employer of choice.
Hopefully, the message is now clear: Workplace sexual harassment is unacceptable, and employers can no longer bury their heads in the sand and pretend not to be aware of it rather than confront the perpetrators, even if they are the owners of the organization or the star performer.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
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