Managing #MeToo

But a series of polls and studies make it plain: Workplace sexual transgressions are still one of the most challenging workplace issues employers face. Half of Canadian women say they have been subjected to sexual harassment at work and 28 per cent have experienced non-consensual sexual touching in the workplace — and the overwhelming majority did not report the incidents, according to a survey by the Angus Reid Institute published in February. Just as dismaying is the wide disconnect between employees’ reality and executives’ perceptions about the problem. A staggering 94 per cent of Canadian executives believe that sexual harassment is not a problem at their company, 93 per cent believe they have a corporate culture that prevents sexual harassment and 69 per cent believe it’s less of a problem than it was 15 years ago, according to a C-Suite Survey by the Gandalf Group.

“That means all the stuff is buried with organizations,” says Janice Rubin, a leading employment Toronto lawyer considered to be a pioneer in the field of workplace investigations and co-founder of Rubin Thomlinson LLP. “And what #MeToo has done is move the dial a little bit. So, some of the stuff has become more overt.”

While the jury is still out as to whether workplace sexual harassment has become more prevalent, one thing is clear: Employment and labour lawyers are busy, advising employers and employees alike, conducting investigations and training people to conduct investigations and helping with training. “The calls are still coming,” says Gail Gatchalian, chairwoman of the Canadian Bar Association’s National Labour and Employment section and a partner with Pink Larkin LLP. “I expect this trend to keep happening and I expect that the #MeToo movement will hit more and more industries. There’s been a bit of a shift culturally in society where women are feeling more supported and society is more willing to listen to a woman’s perspective on the issue.”

Employers, driven in part by apprehension, are now beginning to view workplace sexual harassment not only as a legal liability but also as a serious business and reputational risk. But, for the most part, they still tend to move forward only after they receive complaints and not carry out the “hard proactive work” of transforming the organization’s culture to address the factors that give rise to abuse of authority, harassment and workplace sexual misconduct, as employment and labour lawyers strongly recommend. A 2007 University of Calgary study that analyzed data from 41 studies points out that the single biggest predictor of sexual harassment in the workplace is how permissive an organization is toward this behaviour.

Changing workplace culture, to be fair, is easier said than done. It may have become a cliché, but the drive to change begins at the top. The struggles faced by the Royal Canadian Mounted Police are instructive. The RCMP has been plagued with workplace harassment, bullying, intimidation and sexual harassment for decades. A toughly worded external review of harassment in the RCMP published last year revealed that, in the past decade alone, the RCMP conducted more than 15 reviews of its organizational culture and issued more than 200 recommendations, but few of them were implemented. Despite repeated calls for action, the report underscored a distinct lack of commitment by generations of senior RCMP leaders to undertake the kind of broad-scaled, systemic change required. Instead, most initiatives were short-lived or ad hoc.

“The problem with that is that if the membership is disaffected and feels that it’s not a genuine effort or concern then they are really going to be skeptical about any initiatives that are put in place,” says Emma Phillips, a labour lawyer with Goldblatt Partners LLP and counsel to the RCMP external review.

At a minimum, employers should have a written policy dealing with sexual harassment that has a clear and investigative procedure that requires investigations be conducted competently, fairly and in a timely fashion. But any policy needs the will to put in place processes that address the well-known barriers that inhibit victims from coming forward such as the fear of reprisal, concern over future job prospects, a lack of confidence in the reporting process or trepidation over not being believed. Or, as Gatchalian puts it: “What workplaces need to think about is how to change the equation so that the cost of coming forward isn’t perceived to be outweighed by the desire to make a formal complaint.”

Sexual harassment training can help and can be a critical component to encourage change in workplace culture, say employment and labour lawyers. On the other hand, it can hinder and reinforce gender stereotypes. Inexpensive, off-the-shelf training videos, online software or, worse still, PowerPoint presentations (some subjected to it referred to it as “Death by PowerPoint”) can have a regressive effect as it becomes an object of ridicule. There’s no way around it. It may sound dreary and technical, says Phillips, but the most effective training is conducted by a “high-quality” person, is interactive and adapted to the specific workplace.

Making inroads is so-called bystander training. Traditionally used in emergency situations, bystander training has been adopted by the Canadian Armed Forces and is being taught at a growing number of colleges and universities. Research by the Australian Human Rights Commission reveals that bystanders were more likely than those preyed on to act against sexual harassment. It seeks to encourage individuals to act less as “passive” bystanders and to be more active. Bystander training empowers individuals to recognize inappropriate conduct and trains them to intervene, sometimes discreetly and diplomatically and other times more assertively. In a word, sexual harassment becomes everyone’s business.

“It can be a really effective way of reinforcing respectful workplace policies and culture and also supporting individuals in the workplace when things do happen so that they feel there is a supportive network for them,” says Phillips, who acted as counsel to the External Review on Sexual Misconduct and Sexual Harassment in the Armed Forces and to an independent review commissioned by the United Nations on sexual abuse by peacekeepers.

Rubin adds that bystanders are an underutilized resource, “and considering the fact that most of this stuff goes underground, bystanders can help bring sunshine into these situations.”

Other avenues that employers are exploring include implementing a whistleblower hotline to encourage co-workers to report sexual misconduct, says Marianne Plamondon, a Montreal employment lawyer with Langlois lawyers. The use of audits or assessments to determine the health or toxicity of the workplace is another recourse that employers are exploring, she says. The U.S. Equal Employment Opportunity Commission has suggested rewarding supervisors if harassment complaints increase, at least initially, because “if employees are filing complaints of harassment, that means the employees have faith in the system.”

It seems, at least anecdotally, that employers are getting the message that once they become aware of a complaint they need to act promptly. In Ontario, at least, that involves conducting investigations, something that employment and labour lawyers encourage employers to do regardless of if the law requires it. But, here again, caution is key. Many investigations conducted internally or by a third party are poorly done. “That then is adding insult to injury,” says Rubin. “So, you already have somebody coming forward and complaining, which is a difficult thing to do, and the organization doesn’t do an adequate job of it.”

Rubin knows that of which she speaks. She led the independent investigation of the Canadian Broadcasting Corporation following the dismissal of radio host Jian Ghomeshi, and her law firm was hired late last year to probe allegations of inappropriate behaviour within the Prime Minister’s Office. More recently still, Rubin Thomlinson was mandated by the City of London to review its harassment policies and develop an interim reporting system and investigation process after dozens of employees claimed they felt reports of harassment were not taken seriously.

There can be a price to pay for poorly conducted investigations into complaints of sexual harassment. In Smith v. Vauxhall Co-Op Petroleum Limited, a wrongful dismissal case released last year, the Court of Queen’s Bench of Alberta held that an internal investigation concluding that the plaintiff had committed sexual harassment and sexual assault against a subordinate was inadequate and its findings were incorrect. The court dismissed the claim, finding that the plaintiff’s dishonesty regarding his relationship with his subordinate and his personal harassment were enough to justify a termination with cause. But the court found the allegations of sexual harassment were unfounded. It turns out the investigator did not interview witnesses, did not ask for specific details of the incidents and it was not clear whether the investigator had discussed the allegations with the plaintiff. Interestingly, the court left the door open for an adverse costs award.

In another case released in 2016, Joshi v. National Bank of Canada, the Ontario Superior Court of Justice concluded that a failure to provide an employee with an opportunity to respond to allegations made against him could amount to a breach of the employer’s duty of good faith. “You want to have somebody who knows what they are doing and who knows from a process perspective but also understands substantively the area of law and, right now, you don’t always have both,” says Rubin. “Case law informs our work and deepens our understanding of what is fair and appropriate in the circumstances, as well as what legal decision-makers do when they are reviewing workplace investigation processes.”

The case law, however, surrounding workplace investigations is emerging and barely existed some 15 years ago. Phillips says it will likely be a burgeoning area, particularly in Ontario, with the passage of Bill 132, which imposes a positive duty on employers to investigate allegations of workplace harassment. Under Bill 132, employers are required to take an investigation that is “appropriate in the circumstances.”

“It’s not entirely clear what appropriate and circumstances mean,” says Phillips. “It’s not defined. That legislation is very new, so we don’t really know how it’s going to be interpreted.” Though it’s early days, Phillips says she is also exploring with labour organizations whether it is possible to negotiate a protocol with employers for some sort of minimum procedural fairness framework within workplace investigations.

Case law surrounding sexual harassment is also evolving, albeit slowly. This is mainly because only a small number of cases end up in court. Few victims of workplace sexual misconduct are inclined to or can afford to litigate. Indeed, most employees “just want to be able to go to work, retain their employment and have a safe workplace to go to,” says Gatchalian.

Still, arbitrators and human rights tribunals, an avenue victims are expected to resort to increasingly, have been handing out higher awards than ever before. In a recent case, the Ontario Human Rights Tribunal ordered a shoe store owner and landlord to pay $200,000 as compensation to a woman for sexual harassment and assaults she suffered at his hands. “Human rights tribunals are showing that they are very concerned about these issues and they are taking the damages to the individuals who experienced them very seriously,” says Phillips.

Plamondon says that, while jurisprudence has not changed much over the past few years, that may not last. “We can expect judges to be less tolerant with inappropriate behaviour at the workplace following the wave of denunciations,” she says.

The same could be said of legislative developments, according to employment and labour experts. Besides Ontario, there have been statutory changes in British Columbia and Manitoba. Quebec introduced a draft bill that will amend the Act respecting labour standards that compels employers to adopt and make a psychological harassment prevention and complaint processing policy available to employees.

But all of it is slow moving, and so much more needs to be done, says Gatchalian.

“We need to look at the factors and workplace cultures that are allowing sexual harassment to occur,” says Gatchalian. “I’m not so sure how committed people are to implement systemic cultural changes. If a workplace was really committed to implementing these cultural changes by, for example, increasing representation of women in leadership roles, then it would happen sooner. But I’m not sure how committed people are.”