Sexual harassment still challenging for employers

New legislation in Ontario will lead to harsher penalties

Sexual harassment still challenging for employers
Jian Ghomeshi, a former celebrity radio host, leaves the courthouse after the first day of his trial alongside his lawyer Marie Henein (L), in Toronto, February 1, 2016. REUTERS/Mark Blinch
The names of several big employers have been in the news of late, and not for good reason. CBC was back in the spotlight after one of the women involved in the Jian Ghomeshi trial made serious allegations about her treatment by the broadcaster, while WestJet faced a sexual assault lawsuit from an ex-flight attendant and CIBC saw a former associate alleging sexual assault and harassment in the workplace. 

Yet legislation meant to combat sexual harassment has been in place for years. Countrywide, it’s hard to find anyone who doesn’t know this kind of behaviour is wrong and must be dealt with. 

So why do these cases keep cropping up? 

Culture change needed

Culture is one factor, according to Daniel Pugen, a partner at Torkin Manes in Toronto. 

“With big institutions like CBC, CIBC… culture takes a long time to change. Big institutions are conservative by nature and if you’re undergoing any sort of change, whether it’s implementing harassment programs or dealing with the engagement of your staff, it takes a long time.”

Certain workplaces can take a long time to change, said Stephen Torscher, a partner at Miller Thomson in Calgary, citing northern Alberta employers. 

“Some of the workplaces up there are a little bit more rough and tumble than you’d expect in a downtown Calgary office and the things that are said and the things that are tolerated out there might have been par for the course and tolerable there, but not so much anymore. We’re progressing as a society and that change is what’s happening in all workplaces.”

Greater awareness could also be a factor, said Torscher. As the collective workforce realizes certain kinds of behaviours are no longer permissible, and there’s recourse available, harassment may be reported more often.

People are more aware of their rights and will not tolerate harassment anymore, said Belle Yuan, principal consultant at Strategywise HR in Toronto. And the Ghomeshi case opened doors to show people what is really happening.

“Internally, for most organizations, this has been a norm… and in light of the Ghomeshi investigation… people are much more in tune with, ‘Oh my god, I think that happened in my workplace’ or ‘I think this happened to me, maybe I should start speaking up,’ so that’s now opened up a Pandora’s box.”

Challenges for employers

But it’s tricky for employers, said Torscher.

“The complainant can go on Facebook or Twitter or whatever and start saying a bunch of things and accusing people of doing wrong and then you see the employer not really reacting to it or a bare-faced denial because they’re not really in a position to address the allegations squarely and reveal some of that information that might be confidential.”

The employer has to respect the confidentiality and privacy of the people involved, he said.

“If there is an incident, it’s not like they’re going to publish something in the newspaper saying that ‘We’ve properly investigated this incident and it’s been dealt with’ or anything like that. There’s probably a lot more investigations that go on that we actually don’t ever hear about or know about because they’ve been dealt with properly or people have been satisfied with the result.”

And employers are sometimes caught between reluctant witnesses who do not want to file a formal complaint and the duty to provide procedural fairness to the employee being terminated  or disciplined, said Clarence Bennett, partner at Stewart McKelvey in Saint John. 

Investigations are not easy, according to Torscher. Oftentimes, there are essentially two witnesses, the complainant and alleged abuser, and that’s the only evidence available.

“It makes it really difficult in those circumstances, where there’s just the two people, to be able to come to a firm conclusion about what happened and whether the complaint is justified,” he said.

Sexual harassment is a sensitive issue, said Torscher.

“You’re dealing with personalities in the workplace and there’s a lot of different things that the employer needs to consider and balance when they’re trying to conduct a proper investigation. And... sometimes it’s not a satisfactory response for one or either of the parties. And that’s probably where you see, especially the complainants, perhaps take it to the next level by reporting it to the police or filing a civil suit, like we’ve seen with WestJet and CIBC.”

When an internal complaint comes in, HR typically has to act like the neutral party, said Yuan, “but really HR is not completely neutral — they have to represent management, so when employees would bring forward these types of cases, a lot of times... it sort of gets sloughed off and a full investigation is not done or it’s something that was ad hoc, that’s maybe less objective, just to show that they have done something.”

That’s why internal investigations don’t always work, she said.

“There’s so much internal politics and the imbalance of power internally. When you have an executive that these allegations are made against, what do you think is going to happen when you have somebody maybe lower than the executive that’s doing the investigation? So it’s very political when it’s internal, and it skews the outcome of the investigation.”

A lot of the people in-house don’t have the right training to do these investigations, said Yuan.

“We’re seeing it in the courts where they are being challenged and the arbitrators or judges are basically slapping the company with a lot of damages as a result. So they see that there definitely is a weakness there and that’s what the Bill 132 is trying to address.”

Bill 132
When Ontario’s Bill 132, the Sexual Violence and Harassment Action Plan Act, comes into force in September — which expands the definition of “workplace harassment” to include “workplace sexual harassment” and requires employers to investigate incidents and complaints — the most significant change is sexual harassment is both a health and safety issue and a human rights issue, said Pugen.

The Ministry of Labour will also have the power to order an external person to come in and investigate, and the employer to pay for it.

“If you fail to comply, the consequences under OHSA (the Ontario Health and Safety Act) are significant —  you could be prosecuted — whereas under human rights, that’s less likely to be the case,” he said.

“But I don’t think it’s going to result in more complaints, I think it just results in employers having a specific duty — and now the consequences for non-compliance have gone up.”

An employer is not well-served by giving short-shift to harassment issues, said Pugen.

“You can’t sweep these issues under the rug anymore, there are too many avenues for employees to go to seek redress, it’s a hot button issue,” he said. “Because it’s such an important and newsworthy issue and because companies are concerned about their brand, they want to get to the bottom of it immediately and quickly. I think most companies are smart enough to know, and should be sophisticated to know, that suppressing these types of activities or this type of complaint or issue is going to backfire.”

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