'As long as there are power differentials in the workplace, some are going to abuse that power'
Is the problem of workplace sexual harassment going away? Any employer thinking that does so at its own peril.
“As long as there are power differentials in the workplace, some individuals are going to abuse that power, which can lead to sexual harassment,” says Jeff Rochwerg, an employment lawyer and workplace investigator at Turnpenny Milne in Toronto, who estimates that about 15 to 20 per cent of his firm’s active investigations are either entirely related to or have an element of sexual harassment to them.
“Even though we're not seeing the Mad Men style of 1950s and 1960s overt sexual harassment, we're seeing it take much more subtle forms these days, such as negative performance appraisals, improper recognition, being overly critical of work, or instead of engaging in the content of somebody's work focusing on their grammar instead,” he says. “That's not to say that overt sexual harassment isn’t happening, but we’re seeing it take more subtle forms these days.”
If sexual harassment remains an active problem in the workplace, what can employers and their HR departments do? The first thing is to make sure that they are clear on what constitutes workplace sexual harassment, says Rochwerg.
Case law, statutory definitions
Back in the 1980s, the Supreme Court of Canada defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the worker environment or leads to adverse job-related consequences for the victims of harassment.” Although that definition goes back three-and-a-half decades, it still holds weight in case law to this day, according to Rochwerg.
Rochwerg refers to the Ontario Occupational Health and Safety Act as an example of a statutory definition of sexual harassment, and other jurisdictions have something similar. In Ontario’s case, the definition contains two parts – engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity, or gender expression where it ought reasonably to be known to be unwelcome; and making an unwanted sexual solicitation or advance where the perpetrator is in a position of power over the target.
“For example, a male superior asking a female subordinate repeatedly on a date and the female subordinate is saying no, and potentially as punishment the superior is going to give the subordinate a more negative performance appraisal because she’s not following up on those advances – that can fall within the definition of workplace sexual harassment,” says Rochwerg.
With workplace sexual harassment often being covert, recognition of the circumstances that can make it more likely to happen is important, he says.
“[Sexual harassment] can happen in any workplace culture where leadership isn't attuned to current issues of sexual harassment, gender bias, or broader workplace culture concerns, and this includes leadership that doesn't provide its employees with proper training about their rights, responsibilities, obligations, and reassurances that when they come forward with complaints, they'll be taken seriously,” says Rochwerg.
Conducive environments
Certain environments can be more conducive to harassment. Unprofessional work environments where inappropriate jokes are permitted, where somebody who brings in a lot of business – a “rainmaker” – is given more leeway or condonation of inappropriate behaviour, or where there is a lot of bantering or pranks can exacerbate a harassment problem. In addition, male-dominated workplaces or workplaces where women or non-binary individuals have more subservient roles can be environments that could encourage sexual harassment if employers aren’t careful, says Rochwerg.
Failing to identify a work environment that could foster sexual harassment is one oversight, but there are other common mistakes employers make when it comes to the misconduct.
Rochwerg says inaction is a frequent and easy misstep for employers, including not having proper policies and training in place to reinforce a respectful work environment before harassment happens.
“When employers don't take action unless a formal complaint is received, for example, they're not putting into place preventive measures such as policies and training,” he says. “And then when it does occur, the mistakes employers make is not reacting to the complaints quickly enough, with appropriate resources, or not following the procedures that they've outlined in their policies when a complaint is received.”
Two other common mistakes employers make when handling sexual harassment complaints is keeping confidentiality during the investigation – which can create a chilling effect and prevent employees from bringing complaints forward – and coming to hasty conclusions by dismissing it or sweeping it under the rug, says Rochwerg.
Appropriate discipline
If an investigation is conducted properly and sexual harassment is confirmed, then employers have an obligation to determine appropriate discipline based on the seriousness of the misconduct.
“A common mistake is disciplining the alleged harasser without allowing for due process,” says Rochwerg. “[Conversely], not providing appropriate discipline to individuals who have substantiated complaints against them [is also common].”
Often, these mistakes create liability that, if a harassed employee files a legal action, can lead to significant damages - into the tens and hundreds of thousands -of which he lists four types.
“When an employee has been subjected to work environment where they're forced to endure sexual harassment, that can be found by courts to constitute a poisoned work environment and a constructive dismissal and, in that situation, employees would be entitled to notice of termination - whether statutory, contractual or common law - and without any enforceable employment agreement terms limiting entitlements, then common law reasonable notice could be as high as 24 months for senior or well-compensated employees,” says Rochwerg.
Injury to dignity
The second type of damages comes from breaches of relevant human rights legislation, as sex and gender are protected grounds.
“These are the injuries to dignity, feelings, and self-respect, and tribunals or courts will look at factors such as the immediate and ongoing impact of harassment on the complainant’s emotional or physical health along with their vulnerability,” says Rochwerg. “The range of human rights damages can be between five and $35,000, depending on how many factors are engaged - and oftentimes because the harasser is seen as acting outside the normal scope of their employment duties, there can also be personal liability for the harasser, not just the corporate liability.”
More serious or extreme cases of sexual harassment can add two other types of damages to the pile.
“Damages for intentional infliction of mental distress is where the conduct of the employer or harasser is seen as flagrant or outrageous, calculated to harm the victim and causing the victim to suffer visible and provable illnesses – the amount is usually similar to the human rights damages,” says Rochwerg. “And most significantly, moral, aggravated, or punitive damages can arise from an employer's improper investigation or failure to investigate.”
Given the level of liability that can fall on employers, the risk of liability for sexual harassment is a real threat for employers, even in the modern workplace.
“Workplace sexual harassment likely can't be eliminated entirely, but it can be prevented and mitigated through leadership that's attuned to broader cultural issues,” says Rochwerg. “By putting employees first, it can be mitigated by having clear and consistent policies, training on those policies, ensuring that complaints are dealt with in a timely manner, and ensuring that investigations are conducted appropriately and by the appropriate party.”
