2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
#MeToo and Your Corporate Culture
Over a year has passed since October 15, 2017, the date that Alyssa Milano famously tweeted #MeToo, as a show of support for those who asserted they were sexually harassed or assaulted by Harvey Weinstein and to seek to illustrate the magnitude of the problem. Within 24 hours, the tweet generated more than 12 million retweets, posts and reactions. Thereafter, countless others publically came forward to share their personal stories of sexual harassment or assault.
There can be little doubt that North American society has experienced a shift in how sexual harassment or assault complaints are viewed since the fall of 2017; there appears to be a greater recognition that such behaviour is occurring with increased frequency than perhaps was thought before #MeToo. In the workplace, there appears to be less reluctance on the part of employees to report sexual harassment; there is also an expectation on the part of complainants that complaints will be taken seriously and investigated by employers. We have no empirical data to this effect, but it is certainly our perception from discussions about this topic with our clients.
In February, 2018, the Angus Reid Institute conducted a public opinion survey in Canada entitled “#MeToo: Moment or movement”? A total of 2,004 individuals were surveyed, with 979 male and 1025 female respondents. Overall, 52% of female respondents said they had been sexually harassed at work, while 28% said they had experienced sexual assault at work at some point. Based upon the demographic of many of the men who have been identified as harassers in the past year, you may expect that men aged 55+ have a more relaxed and permissible attitude about what is and is not appropriate in the workplace. The Angus Reid survey, however, identified males aged 18 to 34 as having significantly divergent views from all other cohorts in the survey when it comes to what is acceptable behaviour in the workplace. For example, 13% of males aged 18 to 34 felt that viewing a pornographic magazine at the workplace was acceptable; 20% believed it was acceptable to give a colleague an uninvited shoulder rub.
The Law: Post #MeToo
#MeToo has not changed the law. Since 1989, when the Supreme Court of Canada in Janzen v Platy held that sexual harassment is discrimination on the basis of sex, sexual harassment has constituted a breach of human rights legislation. What has also not changed is procedural law concepts of due process and natural justice, which require that an alleged harasser know the case against them, have a right to be heard, and have confidence that any investigation be free of bias.
Notwithstanding that sexual harassment is a violation of law, it is significantly underreported. Of the female respondents in the Angus Reid survey who experienced sexual harassment and/or sexual assault in the workplace, approximately 75% stated that they did not report the behaviour. For many, the benefit of reporting such behaviour may be insignificant when weighed against the personal and professional “cost” of reporting. There may be a real or perceived risk to career aspirations where the complainant fears being viewed as a “troublemaker”, or where the harasser may be a star performer or very popular in the workplace. Where discipline is imposed in the workplace against the harasser, grievances or wrongful dismissal claims may result and require the complainant to go through the same process as an investigation in a de novo hearing or trial (ie: all parties and witnesses involved in the investigation have to be heard from again). Further, there exists a risk of retaliation or of being ostracized in the workplace which many employees may not be willing to take.
In some respects, social media through #MeToo, has provided survivors of sexual harassment and assault with a different outlet to be heard, rather than through more traditional and formal workplace complaints and legal processes. Through social media, women (as well as men) have found an outlet to share their stories and in return, many have found support from others. Of course, this social media activity takes place outside the context of procedural fairness. For this reason, the #MeToo Movement has sparked tension between two camps: those who support the individuals who have been able to tell their stories through social media, against those who feel that the named harassers have not been afforded due process.
Lessons for Employers
Employers should treat complaints of workplace harassment seriously and in a timely fashion. Once a complaint of sexual harassment is received in the workplace, employers must determine whether the complaint merits an investigation and where that is the case, decide whether to complete an investigation internally or to engage an external investigator. This decision will depend upon the identities of the complainant and the alleged harasser. For example, where the allegation involves a member of management and a subordinate, it is recommended that an internal human resources manager not be utilized to complete the investigation as the management employees will be seen to align with each other. Where, however, a harassment complaint involves two subordinate employees, an internal investigation by a trained human resources manager will likely be suitable in the circumstances. Regardless of who the investigator is, the investigation into sexual harassment allegations should be timely, neutral, thorough and fair. Conducting a flawed investigation can result in not accurately assessing the complaint, as well as an award of significant monetary and reputational damages against an employer, should legal action be initiated, not to mention the negative impact on employee morale.
Employers should also be cognizant that employees may be less likely to come forward with sexual harassment allegations in certain workplace environments. These include: workplaces where significant power imbalances exist amongst male and female employees; male dominated workplaces; military or paramilitary workplaces where the hierarchy in the organization is well-defined and steep; where inappropriate humour and personal conversations are typical and left unchecked; and where there is a lack of leadership in displaying or modeling a respectful workplace.
Employers in the #MeToo Era
A prudent employer must have a level of awareness of the company’s corporate culture and should work to remove any real or perceived barriers to the complaints process, should an employee experience sexual harassment or assault in the workplace. This is especially the case where the workplace characteristics outlined above are present.
Employers are also well advised to review and/or update their respectful workplace policies and procedures and ensure that all employees and contractors have completed training in same. Establishing the employer’s commitment to addressing sexual harassment in the workplace from the top-down, will go a long way in reiterating the message that such conduct in the workplace is not acceptable.