Winner, Employment Lawyer of the Year
The scandal that rocked the CBC and shed light on the inner workings of the country’s public broadcaster has not only made a lasting impact in the world of work, but in the legal realm as well.
Ex-host of the popular CBC Radio show Q, Jian Ghomeshi was accused by a number of employees over the years of bad behaviour, including sexual harassment — and his employer, it would turn out, created an environment that allowed such inappropriate behaviour to fester.
Ghomeshi is also facing five criminal charges of sexual assault (two have been dropped by the Crown prosecutor) and one charge of choking after a number of women came forward alleging violence and harassment.
An investigation led by Janice Rubin, founding partner at employment law firm Rubin Thomlinson in Toronto, and conducted with her colleague Parisa Nikfarjam, held up a magnifying glass to the allegations of harassment and a culture that allowed it to go unchecked.
Her report turned up several disturbing findings, including that management failed to address complaints about Ghomeshi’s inappropriate behaviour, and that his high-profile status garnered him special treatment.
“CBC failed to live up to its obligations to provide its employees a workplace that is free from disrespectful and abusive behaviour,” Rubin’s report reads. “It is our conclusion that CBC management condoned this behaviour.”
Moments before her report was released earlier this spring, the national public broadcaster announced two of its executives would be let go — Chris Boyce, executive director of radio and audio, and Todd Spencer, executive director of human resources and industrial relations.
Rubin also provided recommendations, including that the Crown corporation review behavioural policies, beef up its training efforts related to harassment and discrimination, and establish an ombudsperson and task force via the Canadian Media Guild (the union representing CBC employees).
Now, in the wake of the scandal, Rubin says the implications for employers reflect a recurring theme in most workplace investigations.
“For me, the biggest lesson learned is that just because you’re not hearing it doesn’t mean it’s not there,” she says. “What we know from studies on the subject is that bad behaviour often goes underground. And many employees, in fact most, who experience harassment or other types of abusive behaviour at work don’t report it... So if you are in a leadership position within an organization and you assume that all is well in the organization because you haven’t received a formal complaint, your assumption may be wrong.”
Distilling key points from the investigation to create a logical narrative — while at the same time respecting the promises of confidentiality that had been afforded to the participants — presented a specific challenge, says Rubin. Over the course of the five-month investigation, she conducted interviews with 99 people, mostly in-person, but some via telephone or Skype. The witnesses included current and former employees, as well as members of CBC’s legal and human resources departments, though not Ghomeshi himself.
At the outset, Rubin and her team established a phone line and email account dedicated solely to receiving tips and relevant information. The sheer scope of the investigation was only the first challenge, she says.
“The second, perhaps not-so-obvious challenge was completing the project in a timely fashion,” she says. “This was a very, very large project. And we moved at a clip.”
In the spotlight
The Ghomeshi case shed light not only on employer practices and subsequent legal implications, but also on the impact that public opinion and perception can have on the reputation of an organization — especially one as publicly accountable as the CBC.
“The court of public opinion will weigh in much faster than an adjudicator or an arbitrator — and the court of public opinion appears not to be very favourable to businesses that allow this to happen,” Rubin says.
As lead investigator on the case, Rubin wanted to deliver a report that was fair.
“I wanted to get the work done, and I wanted to produce a report that would be helpful. I wanted to make sure that the process was fair for those who were involved, and I tried really hard not to be distracted by what was going on in the media.”
By exposing the shortfalls of the CBC in the Ghomeshi case, Rubin says she highlighted for every employer not only the risks associated with lack of action, but also the appropriate steps necessary to prevent harassment — and the adequate response, should prevention fail.
“You can’t assume that all people in the workplace know how to behave in a respectful or non-harassing or non-discriminatory fashion — or that if they do know how to behave this way, that they will be inclined to do so,” says Rubin.
“Critically, employers should hold all people within the organization accountable to the standards expected — and I mean all people.”
The onus, therefore, is on an organization’s leadership and management team to drive home what is acceptable and what is not.
“Another thing that comes home to me over and over again when I do this type of work is that workplaces that are respectful and are free from harassment and discrimination don’t just happen,” she said. “It has to be a priority within the organization’s culture and the organization’s workplace practices, and it has to be modelled by everyone in the organization.”
So how does a company do that? Rubin says training and explaining to employees the standard, and then ingraining those rules into the culture, are ways to create a respectful workplace.
For the CBC, she made nine recommendations that the broadcaster said it has adopted and is working to implement with the CMG. So far, CBC committed to review and clarify policies in its behavioural standard and to provide better customized training on it, to conduct “spot audits” to determine the status of workplace environments, and to establish a workplace hotline for reporting, as well as a dedicated ombudsperson and task force to address the vulnerabilities of certain types of employees, including young and part-time staffers.
The response from the broadcaster is indicative of the importance of providing a safe work environment — the legal punishment for which Rubin says is becoming increasingly harsh.
“All organizations should be influenced by the legal requirement, and they are increasingly hard on employers who allow abusive behaviour in the workplace.”
For someone in her line of work, Rubin says this year has been an interesting one so far, citing Marie Deschamps’ report highlighting issues of sexual misconduct, harassment and discrimination in the Canadian Forces, and investigations at Dalhousie University in Halifax following allegations of sexual harassment.
In both cases, the organizations made swift commitments to changing for a safer and more respectful workplace. Rubin says she hopes it brings to light some of the underlying issues of harassment on the job.
“It is still an area of behaviour that is misunderstood,” she says.
“We hope generally our reports shed some light on that type of behaviour and also shed some light on the impact of that behaviour on the individuals who experience it.”