Some high-profile cases of alleged sexual harassment or assault in the workplace in recent years have ensured that this is an issue that all employers, regardless of size, need to confront and try to minimize as best as possible the risk of it taking place in the future.
Not all incidents or allegations are the same in terms of scope or seriousness, obviously, but that does not mean workplace training and investigation protocols should only be geared toward the most extreme misconduct.
In fact, it is likely to be conduct that might be considered to be in a “grey area” in terms of whether it is appropriate that will be more common and more complex for employers to assess and decide upon whether to take action.
A recent and very prominent example of this is the allegations made earlier this year against Joe Biden, the former United States vice president now seeking the Democratic nomination for president.
Several women spoke publicly that they had felt uncomfortable in the presence of Biden, who has a well-known habit of touching and sometimes hugging people he interacts with as a politician.
The allegations never suggested there was sexual intent in Biden’s actions but that they were inappropriate.
In a video he issued in early April, there was not an explicit apology from Biden, but he did acknowledge changing societal views.
“The boundaries of protecting personal space have been reset. And I get it,” he said.
At the same time, Biden went on to stress the importance of “connecting with people” not only in politics but in life. After a short burst of publicity, the potential political problems for him on this issue appeared to recede.
The Biden example, while involving a politician, still has relevance to workplaces in general because it highlights common issues in this area, such as the lack of realization that one’s behaviour is upsetting to others, notes Vancouver lawyer Melanie Samuels. “There are different social mores now. Whether someone intended it or not is not necessarily relevant,” adds Samuels, a partner at Singleton Urquhart Reynolds Vogel LLP in Vancouver and co-chairperson of its employment and labour group.
“Sometimes, the smaller stuff can be more insidious [in a workplace],” she says.
The #MeToo movement raised considerable awareness about inappropriate sexual conduct, both in and outside the work environment. However, the media has also popularized the notion of a backlash, suggesting that the rules on what is acceptable are unclear, unfair to men and some individuals are too easily offended by behaviour that is not inappropriate.
Elizabeth Bingham, a lawyer, workplace trainer and investigator at Rubin Thomlinson LLP in Toronto, agrees that incidents where there might be some ambiguity about the seriousness of the conduct are increasingly common.
“The volume of the work we do has certainly increased. There are more complaints and more investigations, but not necessarily the extreme examples,” Bingham notes.
The challenge for employers, then, is to educate their workforce to better understand what the boundaries are and what processes are in place if a complaint has been filed.
“These are workplaces. Ultimately, you are hoping everyone will get along,” says Wendy Hulton, a partner at Dickinson Wright LLP in Toronto and a member of its employment group.
This requires the development of training programs that help unblur some of the grey areas for employees and a process that is not seen as an obligation that must be completed.
“Mandatory courses are not very helpful,” says Hulton. “People tend to multi-task while taking them. The best way to do this is in small groups.
“The most important thing is getting the conversation going,” adds Hulton.
Those leading the training sessions can use examples to start a discussion among co-workers, but it will be more effective if they are able to interact with each other about various workplace scenarios.
“Often, the confusion comes from ignorance. What is acceptable in one setting may not be in another,” says Hulton.
Lisa Cabel, a partner at Norton Rose Fulbright Canada LLP in Toronto, says updating any training or policies already in place should be part of risk mitigation internally.
“The past couple of years has motivated companies to update what is potential harassment,” she says. As well, “unconscious bias” should be included in employee training, she adds. “Individuals may not be aware that their conduct is inappropriate and they are unlikely to self-identify,” says Cabel. While it is not always the case, Bingham agrees that employees may genuinely be unaware of the impact of their conduct.
“Good people can do bad things,” she notes. The goal in training, she says, is to develop an outlook that helps employees become more self-aware.
“The training that we do we call respect at work. It is really about being mindful and recognizing that we all want to feel comfortable and respected,” says Bingham.
Role playing and other in-person interactions are the most effective ways to increase employee awareness, she says.
“You have to show what it looks like in person and what the impact is on the other person,” says Bingham. “There has been some pushback that this is all going too far, but what I have found in training is that people are eager to have this information.”
David Edinger, a colleague of Samuels at Singleton Reynolds, says effective workplace training in the current climate requires some flexibility.
“These days, it is not about training to a certain set of rules — a Ten Commandments of sorts. You need to train a way of thinking. And this is best done in person. There have to be discussions,” says Edinger, a partner in the firm’s professional liability law group.
Sometimes, the training can be brought home through common-sense examples.
“If you would not want someone to make that kind of comment to your daughter, then do not say it to a female employee,” Edinger says.
The receptiveness to implementing proper training and workplace conduct policies, however, may still depend on the nature of the company, he says.
“In the regulated professions, these policies have been in place for many years and are much more accepted,” he says.
All of the lawyers agree that, in addition to gender differences over what is acceptable workplace conduct, generational ones are also a major factor to consider.
Employee communications is one example, says Cabel.
“I think there are more opportunities for a misinterpretation generally. Younger people treat emails like telephone conversations. They will put anything in them,” she says.
Bingham notes that younger employees are more familiar with the importance of addressing gender discrimination and harassment.
“But a younger workplace can also be much more informal. It is important to explain to them that there is a difference between work life and social life,” she says.
A survey conducted by Angus Reid in February 2018 about #MeToo and workplace relations separated responses by age group and some of the results could be described as surprising.
More than a quarter of men aged 18 to 34 responded that it was acceptable to tell an “off-colour” joke at work, compared to eight per cent of male employees aged 55 and over.
The “acceptable” response for female employees ranged from 10 to 16 per cent (the 16 per cent was women aged 35 to 54).
Nearly 20 per cent of men in the 18-to-34 age group stated that giving a colleague an uninvited shoulder rub at work was acceptable, compared to six per cent of women in that age range (fewer than 10 per cent of men in the older age demographics found this to be acceptable).
As well, the survey indicated that 13 per cent of male respondents aged 18 to 34 replied that it was OK to peruse a pornographic magazine at one’s workstation during the lunch break.
This contrasted with three per cent of male employees aged 55 and older, who said it was acceptable.
Along with putting effective training in place, just as crucial for employers is a process that deals with complaints in a fair and proportionate manner to all parties.
Hulton says that requires an environment where an employee is not afraid to come forward, especially if it involves a colleague who may have more power within the organization.
“If you can’t say something, nothing will change,” she says, adding that this should apply as well to bystanders who have relevant information.
A spectrum of workplace misconduct, developed by University of Southern California professor Kathleen Reardon, is a useful tool to use in analyzing the seriousness of an allegation and how to respond, says Hulton.
“If it is on the lower end, can we address the employee’s concern and educate the colleague?” she asks.
In May, CBS Corp. announced sweeping changes to its human resources operations because of highly publicized past incidents of sexual harassment and misconduct, which also led to the resignation last fall of its chief executive, Les Moonves.
Human resources professionals are going to be assigned on set to its television shows and all employees will be able to report any workplace complaints to an independent third-party system that is being created.
That is a much broader framework than what is in place in most large North American companies, although it follows numerous allegations and reports about a culture that has had a very negative impact on the company, especially reputationally.
In most cases and for most companies, Cabel says, workplace complaints should be dealt with internally.
“It does not always have to be a third party, unless the allegations are egregious. Most of the time, investigations can be done internally and it is a human resources function,” she states.
At the same time, she says, the process in any internal investigation must be fair to the complainant and the person being complained of.
“If there are three witnesses, then speak to all of them. Make sure they are being listened to. The challenge, depending on what is being complained of, is that there can be room for interpretation on what is inappropriate conduct,” says Cabel.
Workplace investigations “require a buy-in at every level” if they are to be accepted as legitimate within an organization, says Bingham.
“This requires procedural fairness” in the process, she adds.
As much transparency as possible during the investigation process is also vital, says Samuels.
“Keep people informed along the way,” she says.
Still, she says, there has to be rigour in how this is done.
“Manage the expectations and let them know you may not get the outcome you want. The most important thing in any process is consistency. But [the parties] do not get to determine the outcome,” Samuels says.
The highly publicized cases in recent years have definitely “shone a spotlight” on workplace harassment, she says.
“There is a greater sensitivity to it now. But that has not sorted out the underlying problems,” says Samuels.
It is another reminder of the need for an effective process “for dealing with these matters, which are often very sensitive in nature,” she says.