#It’s Time: A 5-Step Sexual Harassment Risk Mitigation Strategy for Employers
March 29, 2018
By Bradley Proctor, Regional Lead Partner | Labour and Employment at McInnes Cooper,
Katie Roebothan, Associate at McInnes Cooper
Driven by the #metoo and #timesup movements, workplace sexual harassment is front and center in employers’ – and employees’ – minds. Workplace sexual harassment isn’t a new issue: 30 years ago, the Supreme Court of Canada, in the landmark case of Janzen v. Platy Enterprises, decided workplace sexual harassment is a form of sex discrimination in employment and violates human rights legislation. But the latest numbers make it crystal clear: workplace sexual harassment remains one of the most significant workplace issues that employers face. The many forms and frequent “invisibility” of workplace sexual harassment and its victims’ fears of reporting it can make it challenging for employers to prevent and effectively respond to it; yet this is exactly what the law demands they do. The scope, the effects – and the legal, financial liability and business risk exposure – of workplace sexual harassment make it an issue employers simply can’t ignore.
It’s time for employers to act to address workplace sexual harassment. Here’s a five-step risk mitigation plan to help employers minimize the growing legal, financial liability and business risks of workplace sexual harassment.
- Admit that sexual harassment can happen in any workplace – and there’s a good chance it’s happened in yours.
No employer wants to admit sexual harassment either could or already has happened in their workplace. But employers need only see, hear or read the daily news to know that workplace sexual harassment isn’t limited to the entertainment – or any – industry: there have been publicized reports of sexual harassment in sectors ranging from the hospitality to the tech start-up to the political sectors. And that it’s not just a U.S. issue: it’s happening around the world – including in Canada. And the latest numbers showing the shockingly frequent incidence of workplace sexual harassment and violence should confirm that workplace sexual harassment can happen – and probably has – in many Canadian workplaces.
- On February 8, 2018, the Angus Reid Institute published the results of its new surveyof Canadian public opinion, #Metoo: Moment or movement? including that 52% of women and 22% of men surveyed said they have been sexually harassed – and 28% of women and 14% of men have also experienced non-consensual sexual touching (a.k.a. sexual assault) at work. Perhaps the most surprising result is the proportion of “younger” men who found certain workplace behaviours “acceptable”, suggesting some stereotypes about the perpetrators of workplace sexual harassment might be off-side.
- A December 2017 survey by Insights West concluded that 54% of working women in Canada say they have experienced conduct, comments, gestures or contact of a sexual nature that caused them offence or humiliation, and 30% experienced conduct, comments, gestures or contact of a sexual nature that they perceived as placing a condition of a sexual nature on their employment or on any opportunity they might have for training or promotion.
- In November 2017, the Federal Minister of Employment and Social Development Canada published its report, Harassment and Sexual Violence in the Workplace – What We Heard. The report revealed that 30% of online survey respondents (1,005 of whom identified as female and 200 as male) said they had experienced sexual harassment and 3% said they had experienced sexual violence. Most who reported experiencing harassment, sexual harassment or violence in the past two years indicated they experienced it more than once. This lower figure relative to the more recent ones is likely explained by the fact this report was issued just after the Hollywood allegations against Harvey Weinstein broke in October 2017 – and demonstrates the impact of the #metoo movement on womens’ willingness to speak up about sexual harassment.
The numbers also confirm what many already believed: women aren’t the only targets of workplace sexual harassment, but they are the primary target. In Angus Reid’s #Metoo: Moment or movement, 52% of Canadian women said they’ve experienced sexual harassment and 28% non-consensual touching, compared to 22% and 14% respectively of Canadian men.
- Make it a (high priority) corporate governance matter – the risks warrant it.
Employers’ legal, financial liability and business risk exposure for workplace sexual harassment is high. And as more employees become aware of their rights and comfortable speaking up about sexual harassment they experience – and rightfully so – that exposure is only getting higher. These risks warrant equally high-level attention: have a board member or committee take the issue of workplace sexual harassment on as an important and a priority project, and back them up by allocating the necessary resources to get the job done.
If the scope of workplace sexual harassment hasn’t been an eye-opener for employers, the legal liability exposure should be. The law has recognized the effect of workplace sexual harassment by imposing legal obligations on employers to take steps both to prevent it and to act when it does occur.
Occupational Health & Safety (OHS) Laws. All provincial and federal OHS laws oblige employers to take reasonable precautions (or some variation of this wording) to maintain a safe and healthy workplace for all employees. This is now generally accepted to encompass both psychological and physical safety, even if it’s not explicitly stated. And it’s trite to state a workplace in which sexual harassment occurs is neither psychologically nor physically safe. Some provincial OHS laws expressly deal with workplace sexual harassment and violence, prohibiting them and mandating provincially regulated employers to take specific steps to prevent and/or respond. And in November 2017, the federal government tabled Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017. Bill C-65 will amend the Canada Labour Code to require federally regulated employers to: have a sexual harassment policy in place; investigate and report on any incidents brought to their attention; respond to harassment and violence reports; give employees the choice of an informal resolution process or a neutral, third-party investigation that will result in recommendations; and if the employee chooses the latter to implement the investigator’s recommendations. In recognition of recent reports of sexual harassment by young female political staffers, Bill C-65 will also expand these protections to include parliamentary and political staff.
Human Rights Laws. Harassment on the basis of a ground protected by human rights laws amounts to discrimination on that ground. Canadian human rights laws universally expressly prohibit employers from both refusing to employ and refusing to continue to employ anyone on a discriminatory basis, or discriminating in any employment term or condition based on “sex” – and it’s long-settled that sexual harassment constitutes discrimination on the basis of sex. This protection is broad: in December 2017, the Supreme Court of Canada (in British Columbia Human Rights Tribunal v. Schrenk) confirmed what many employment law lawyers already believed: the human rights law obligation of a “person” not to discriminate in employment prohibits discrimination against employees whenever that discrimination has a sufficient connection to employment; it’s not limited to discrimination by their superiors. Similar to OHS laws, many human rights laws, such as the Ontario Human Rights Code, now also expressly prohibit workplace sexual harassment; against whom that protection extends depends (as in any case) on the wording of the law. However, decision-makers interpret human rights laws as broadly as they can.
Employment Standards Laws. Employment standards laws in each province and federally set the minimum standards for employment rights. Again, like OHS and human rights laws, many expressly prohibit workplace sexual harassment and impose obligations on employers to make “every reasonable effort” (or words to this effect) to ensure no employee is subjected to it, mandating steps employers must take to prevent and respond to workplace sexual harassment.
Criminal Law. The Criminal Code makes sexual assault an offence, and defines it very broadly to encompass a wide scope of conduct that can range from threats to rape. In addition to the offence of sexual assault, however, Criminal Code section 217.1 imposes a legal duty on anyone and everyone who directs the work of others, “to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task” – and imposes personal criminal liability on people who fail to meet that duty. The genesis of section 217.1 is the 1992 Westray, N.S. mine disaster. To date, section 217.1 hasn’t been applied in the context of workplace sexual assault. But what if: the employer directs an employee to participate in a social function(s) as part of their job duties; knowing there’s alcohol available and widely consumed; perhaps knowing there’s a history of questionable conduct at the function; perhaps without taking steps to ensure the employee knows they can, or with a means to, leave (like a taxi chit, for example) if they feel exposed to sexual misconduct … and a sexual assault occurs? In the current climate, employers can expect the law to develop, and for employees and Crown prosecutors to push to extend both protections against and consequences for workplace sexual assault – such as applying section 217.1.
Employment Contract. A safe and harassment-free workplace is an implied term of every employment contract – and every employer has an employment contract with every employee, whether it’s in writing or not.
Collective Agreement. The legal obligations imposed under OHS, human rights and employment standards laws are incorporated into every collective agreement, whether or not the agreement expressly says so. Collective agreements often expressly include anti-discrimination and harassment prohibitions and obligations in addition to – and more onerous than – those the laws impose. And arbitrators have also recognized it as an implied term of every collective agreement that supervisors must exercise their authority in a non-abusive, non-harassing manner.
Financial Liability Risks
These legal obligations create legal – and financial – liability if the employer fails to address workplace sexual harassment at all, or does so inadequately. Regardless of the avenue an aggrieved employee chooses to pursue, and there are many options, the employer will incur the legal and other financial costs of dealing with the issue – and the legal and financial risks of the outcome.
Monetary Compensation. Decision-makers that have found employers liable for workplace sexual harassment haven’t hesitated to award the victimized employee financial compensation. Depending on the particular facts and on the forum, the monetary awards compensate the victim for: past and future wage loss; general damages (compensation for pain and suffering); specific losses, such as intentional infliction of mental suffering or assault; aggravated damages (in the context of employment law, often relating to the manner in which the employer dismissed the employee); and punitive damages (a monetary award intended to punish the wrong-doer rather than to compensate the victim).
Monetary Fines. Many regulatory laws and the Criminal Code authorize relevant authorities to impose fines against corporate offenders and, in some cases, the perpetrator and/or corporate officers and directors, managers and supervisors – personally.
Jail Time. Some regulatory laws and the Criminal Code also authorize the imposition of jail time on individuals.
An employee who suffers workplace sexual harassment can seek redress from their employer, the person who perpetrated the harassment and/or the perpetrator’s employer, through several avenues – but these avenues aren’t necessarily mutually exclusive. Depending on the circumstances, an employee could pursue one or more of them concurrently or consecutively.
Workplace harassment policy complaint. If the employer has an internal harassment policy, a harassed employee could lodge a compliant against the alleged perpetrator under it. But many employees choose not to pursue this avenue at all, or to pursue it as but one of a multi-pronged approach. The main reasons: fear of retaliation and of not being believed, and a lack of consequences for the harassers, according to Newsweek’s October 2017 article, How Human Resources Is Failing Women Victims Of Workplace Sexual Harassment (that, notably, cites an example from New Brunswick, Canada). Another factor could be the limited remedies that internal harassment policies offer the harassed employee: it’s unlikely that an employer will offer financial compensation for any pain or other losses they might have suffered as a result of the harassment.
OHS, human rights or employment standards law complaint. The employee could lodge a complaint against the alleged perpetrator (depending on the wording of the law and the relationship between the perpetrator and the complainant), their own employer, or both, with the relevant regulatory authorities under any (or more than one) of the laws, simultaneously or consecutively, and either contemporaneously with, before or after a workplace policy complaint. Filing a complaint typically triggers a process by the relevant regulatory body entailing notice to the accused and the employer, an investigation, a conclusion and consequences. Human rights and employment standards laws are, in large part, “remedial” rather than “punitive”: their primary purpose is to cure the harassment, not to punish the perpetrator (or the employer, its officers, directors or managers). However, most OHS laws impose obligations – and liabilities – on not just a company but also its directors, officers and supervisors, typically authorizing the imposition of personal fines and jail time.
Criminal complaint. The employee could choose to involve police and lodge a criminal complaint against the perpetrator for sexual assault – and this could also lead to criminal charges against the victim’s employer (i.e. the company) and its officers, directors and supervisors personally, under Criminal Code section 217.1. In the case of a company a court finds guilty, the Code authorizes the imposition of fines; but convicted individuals who violate section 217.1 are exposed to personal fines and to jail time.
Civil Lawsuit. An employee can sue both the harasser, whether that’s a co-worker, a customer, a supplier, or otherwise, as well as its own employer (and the harasser’s employer, if the harasser isn’t a co-worker) in a civil court of law.
- The Perpetrator. The lawsuit against the alleged perpetrator of the harassment is, generally, based on the civil wrong (or “tort”) of causing physical and/or mental harm to the victim. To date, it seems Canadian law recognizes the existence of the tort of “harassment” generally but not the tort of “sexual harassment” specifically on the basis sexual harassment is in the exclusive domain of human rights laws. But again, in the current climate, employers can expect employees to challenge this constraint (or for human rights awards for sexual harassment to rise to compensate for it). And Canadian law does recognize the torts of assault (intentionally causing the reasonable apprehension of an immediate harmful or offensive contact) and battery (intentionally causing harmful or offensive contact with a person without their consent), among others that might apply in the context of sexual harassment.
- The Perpetrator’s Employer. The lawsuit against the perpetrator’s employer (whether the same or different from the victim’s) is based on the legal principle of “vicarious liability”. Under the vicarious liability principle, generally, an employer is liablefor its employees’ acts or omissions if they were committed “in the course of their employment” – a test that, despite its plain wording, has been the subject of significant legal debate and comment. Whether an employee is acting “in the course of the employment” depends on the particular facts; the ultimate question is whether the wrongful act is sufficiently related to conduct the employer authorized to justify imposing vicarious liability. A number of factors are relevant to answering this question, but it’s generally accepted that a significant connection between the creation or enhancement of a risk, and the wrong that flows from that risk – even if it’s not related to the employer’s wishes – authorizes the imposition of vicarious liability. Vicarious liability of an employer for sexual harassment or assault an employee commits isn’t automatic, but yet again, in the current climate employers should expect that decision-makers have seen and heard what employers have, and will hold employers to account for how they do – and do not – handle workplace sexual harassment.
- The Victim’s Employer. In addition, a victim could make a direct legal claim against their own employer. Such a claim can be framed in various ways, but is generally a wrongful dismissal claim alleging the employer’s failure to provide a safe and harassment-free workplace breached the employment contract, and the employer “constructively dismissed” the targeted employee. Constructive dismissal occurs when the employer unilaterally changes a fundamental term(s) or condition(s) of employment, effectively breaching the employment contract.
The key reasons an employee might pursue a civil lawsuit instead of, or in addition to, a criminal complaint or other avenues are:
- Lower standard of proof. In a criminal case, the prosecutor must prove to the court that the accused perpetrator is guilty “beyond a reasonable doubt”; in a civil lawsuit, the claimant (or “plaintiff”) must prove to the court the defendant (the perpetrator or the employer and anyone else against whom the lawsuit is made) is liable “on a balance of probabilities” (more likely than not), a lower threshold. It’s therefore possible a criminal complaint could fail – but a civil lawsuit based on the very same incident succeed. Think O.J. Simpson (the criminal trial).
- Perpetrator’s compulsion to testify under oath. In a criminal case, the accused perpetrator can’t be compelled to testify (and in turn, open to cross-examination) under oath: they have a right to remain silent and can’t be penalized for exercising that right. Yet practically, the complainant must testify. Think Jian Ghomeshi. In a civil lawsuit, the claimant (plaintiff) can compel the defendant (the perpetrator, employer(s), etc.) to answer questions under oath before the trial in the process called “discovery”. And while not legally compelled to testify under oath at a trial, practically the defendant might have to, or risk the court drawing an adverse inference for failing to do so – permissible in a civil case. Think O.J. Simpson (the civil trial).
- Control. In a criminal case or a complaint under regulatory laws, the government’s lawyer (the prosecutor) or the regulatory agency’s representatives control the proceedings in all respects, and things can get bogged down in the “bureaucracy”. In a civil lawsuit, the claimant (usually via their legal counsel) typically “controls” the pace and direction of the legal proceedings. However, an employee victim of sexual harassment doesn’t need a lawyer to make a complaint under one of the regulatory laws; although it’s not a legal requirement to have one to launch or continue a civil lawsuit, it’s often a practical necessity.
- Monetary compensation. In a criminal case and under most of the regulatory laws (with the exception of human rights), the decision-maker can’t award the victim monetary compensation for the sexual harassment, only impose fine(s) and/or jail time (or some variation). Human rights laws do authorize monetary compensation to successful sexual harassment complainants and the amount is increasing; for example, in one 2015 case the Ontario Human Rights Commission awarded a successful sexual harassment complainant $150,000. However, this was an unusually high award; the amount is often less and furthermore could vary dramatically depending on the province in which the complaint is made. In a civil lawsuit, the primary tool to right a wrong is monetary compensation to the successful claimant who has suffered loss caused by the defendant’s conduct. The amount is based on the losses the victim can prove they suffered; however, a court can also award monetary damages to the victim with the objective of punishing the defendant(s) (“punitive” damages). To date, damages awards for civil harassment lawsuits have, with some exceptions, been relatively modest – but that may very well change.
Grievance. Unionized employees don’t necessarily have the option of suing their employer, but they can grieve an incident of sexual harassment under the relevant collective agreement whether or not it includes a specific term(s).
In addition to direct monetary consequences, there are business risks and related costs to employers that don’t deal with sexual harassment at all, or properly.
Reputational Damage. In today’s age of “metoo” and social media, harassment victims are taking to publicly naming and shaming the alleged harassment perpetrators – and often, their employers. Any legal action can be highly publicized, but workplace sexual harassment cases often are. Workplace sexual harassment can cause employers immense reputational – and often resulting financial – consequences.
Opportunity Costs. Workplace sexual harassment and harassment complaints cost management time. And they have a significant negative impact on all of targeted employees, their co-workers and managers. Effective prevention and response to sexual harassment reduces staff turnover and fosters a more productive and healthy work environment, all of which can generate significant cost savings. Targeted employees experience effects including: impaired concentration or decision-making ability; distress, anxiety, sleep disturbances, substance abuse and/or suicidal thoughts or actions; and physical illness. These lead to reduced work performance and lack of attention when working, and thus safety hazards, increased employee absenteeism and ultimately higher employee turnover. And these negative effects typically extend far beyond the targeted individual(s). Employees in a workplace in which others are subject to sexual harassment or in a “poisoned work environment” (one in which an ongoing culture of sexualized, discriminatory and harassing behaviours is pervasive) can experience negative consequences similar to those the target experiences despite not being the target themselves.
- Assess your current situation – and the current sexual harassment and violence risks.
Once you understand your obligations, assess your current situation to determine both the risk exposure of your employees to sexual harassment and of the employer’s financial exposure for any workplace sexual harassment.
Risk Assessment. The OHS and other laws of some provinces expressly require employers to undertake a risk assessment in relation to workplace violence; some also require workplace harassment risk assessments. Regardless of whether a risk assessment is expressly mandated by law, it’s prudent for every employer to undertake one.
- Involve key stakeholders. Engage key workplace stakeholders, including the Occupational Health & Safety Committee or Representative, in the risk assessment process.
- Consider third party help. Engaging third party experts or legal counsel to help conduct or validate the risk assessment could lend credibility to your assessment and help you benchmark against others in your industry.
- Use risk assessment checklists. Government departments, like provincial occupational health and safety agencies, often offer on-line risk assessment checklists that run from start to finish. The more detailed, the better. They, along with industry associations, often also offer industry-specific risk assessment checklists. Use them to guide your assessment. For example, though not specific to workplace sexual harassment and violence, the Occupational Health and Safety Council of Ontario publishes a detailed toolbox that can help employers identify the relevant factors. Many risk assessment checklists break risk assessments down into two key aspects: an assessment of the general physical environment and an assessment of “specific risks”.
- Assess risk factors specific to sexual harassment & sexual violence. A number of industry organizations and regulatory bodies also make available risk factors specific to workplace sexual harassment and violence. For example, the Employment and Social Development Canada’s November 2017 report, Harassment and Sexual Violence in the Workplace – What We Heard, details the top risk factors survey respondents identified for workplace sexual harassment and for workplace sexual violence.
Financial Risks. As part of their risk assessment process, employers should also consider whether and what steps they’ve taken to mitigate their financial exposure in the event of a workplace sexual harassment or violence claim against it. For example, employers should carefully assess their situation with their insurance broker: insurance coverage for workplace sexual harassment claims by employees and others against the employer, its employees, directors and officers is often available – and advisable.
- If you have a workplace sexual harassment policy, review and revisit it; if you don’t, develop and implement one. Now.
An employer’s best defence to the liability risks of workplace sexual harassment is preventing it from happening in the first place. Failing that, the best defence to a workplace sexual harassment incident is by properly responding, handling and resolving it. And failing that, the best defence to a legal claim, regardless of its nature (whether a regulatory complaint, a criminal charge or a civil lawsuit) is proof the employer took reasonable steps to prevent it from happening and responded to it properly. A well-drafted, effectively implemented and consistently enforced workplace sexual harassment policy is the lynchpin to achieving all of these objectives.
The basic principles of developing and implementing enforceable workplace policies apply equally to a workplace sexual harassment policy. But as with any significant workplace policy,when developing, implementing, enforcing and refreshing a sexual harassment policy there are nuances to which the employer must pay particular attention, including:
Consultation. A workplace sexual harassment policy is one area in which employers can benefit significantly from legal consultation and advice, as well as consultation with workplace sexual harassment experts and workplace stakeholders, in particular the occupational health and safety committee and the union (if a unionized workplace).
Drafting. When reviewing or writing a sexual harassment policy, pay close attention to these elements:
- Understand & define “sexual harassment”. Generally, sexual harassment is improper conduct (including acts, comments or displays) of a sexual nature that the perpetrator knew or ought reasonably to have known were unwelcome or would cause offence or harm. It doesn’t depend on the perpetrator’s intent; the focus is on the effect on the target. It can take numerous forms. Common examples include – but aren’t limited to: verbal abuse or threats; sexually-oriented jokes, remarks, innuendoes or taunting; derogatory or patronizing name-calling; comments of a sexual nature about weight, body shape, size or figure; rough and vulgar humour or language; display of sexually offensive or pornographic material; practical jokes causing awkwardness or embarrassment; leering, ogling or other gestures with suggestive overtones; lewd gestures; unwelcome invitations, requests or sexual advances, possibly accompanied by threats or explicit or implicit promises; unnecessary & inappropriate physical contact such as patting, pinching, stroking or suggestively brushing up against someone else’s body; and sexual touching or physical assault. Decision-makers usually require that to constitute “harassment”, there be a series of incidents, but one incident could be enough if it is severe and has a lasting impact on the target.
- Understand & define the “workplace”. The “workplace” is much bigger than it used to be. The exponential increase in the type, availability and use of technologies like computers and smartphones and the ever-increasing rate of living life “on line” have greatly changed the scope of the traditional “workplace” and of workplace sexual harassment. Just as technology as a means to communicate has increased, so too has its use as a tool to perpetrate sexual (and all) harassment. Any conduct that would amount to sexual harassment when done in person amounts to sexual harassment when done digitally, like displaying screensavers or desktop backgrounds featuring offensive content. And many times, sexual harassment, whether digitally or in person, occurs outside of working hours and beyond the four walls of the employer’s premises. But employers have long had the legal right to discipline employees for “off-duty” misconduct – and in turn, the legal liability for failing to act when employee misconduct warrants action:
- They can discipline employees for misconduct that occurs outside of working hours but on company property – like cocktails in the office lounge on a Friday after quitting time.
- They can discipline employees for off-duty conduct that’s both outside of working hours and “off-site”- like the office summer party at an employee’s house on a weekend – if it detrimentally affects the employer’s legitimate business interests: it harms the employer’s reputation or product; it renders the employee unable to perform their duties satisfactorily; it leads to refusal, reluctance or inability of other employees to work with them; the employee has been guilty of a serious breach of the Criminal Code, making their conduct injurious to the general reputation of the employer and its employees; or it makes it difficult for the employer to properly carry out its function of efficiently managing its works and directing its workforce.
- They can discipline employees for off-duty online activities – like “sexting” an employee or making comments on social media that includes other employees in the communications – if it detrimentally affects the employer’s legitimate business interests.
- Procedures. Details of a proper complaint procedure, including the process the employer will follow to investigate a complaint and how it will communicate with stakeholders, is a particularly key aspect of a sexual harassment policy.
- Complaint procedure. According to Angus Reid’s recent survey #Metoo: Moment or movement?, 72% of the women who responded they experienced workplace sexual harassment and 73% who reported they experienced sexual assault didn’t report it. It might seem counter-intuitive, but the policy should encourage employees to complain if they experience workplace sexual harassment: if there’s sexual harassment in the workplace, the employer wants to know about it; if it doesn’t, it can’t act. Unreported and unaddressed sexual harassment complaints can fester, potentially leading to a poisoned work environment that exposes the employer to significantly greater liability risks – and will be much more difficult and costly to address. If employees who legitimately experience sexual harassment report it under the policy, it’s an indication they feel confident the employer is committed to addressing workplace sexual harassment, has an appropriate system in place to do so, and will act – and act appropriately – in response to a complaint. Harassed employees might be more likely to report if the complaint procedure is expressly detailed in the employer’s policy, such as: to whom employees should make a complaint; the form complaints should take; the information the employer will seek from the complainant (witness names, documents, photographs, etc.); the steps the employer will take once it receives the complaint; and when it will endeavor to take those steps. And while it’s appropriate to provide for both an informal and a formal complaint process in many types of policies, an informal process (one that uses dispute resolution procedures such as mediation in lieu of a more formalized fact-determination process) isn’t always appropriate for a sexual harassment complaint at all, or for those of a more serious nature. If the sexual harassment policy does include one, make sure it clearly defines triggers for prompt escalation to a formal complaint process.
- Investigation procedure. The policy should also outline the process the employer will follow to investigate a complaint. A proper workplace investigation of a complaint is always important regardless of its nature, but the potential for retaliation and the stigma workplace sexual harassment complaints bear make a proper investigation especially important for a sexual harassment allegation. And be careful about making confidentiality commitments to complainants in the complaint and investigation procedure. There’s no doubt a promise of absolute confidentiality is reassuring to complainants, but it’s simply not a promise the employer can always keep if it is to fulfill its obligations to both the complainant and the alleged perpetrator to investigate the complaint properly.
- Communication procedure. Make sure the process requires communication of the ultimate findings and actions to the complainant and the (alleged) perpetrator.
- Consequences. Outline the consequences for breaching the policy.
- Deal with discipline. State the full range of potential consequences for breach – including termination for cause.
- Deal with retaliation. Be firm: no retaliation or reprisal for filing a sexual harassment complaint. None. Retaliation against an employee for filing a human rights complaint is in itself discriminatory, and the same can be said about harassment.
- Deal with false accusations. Address how complaints found to be “false” will be handled. Any type of workplace complaint could be false. But since a sexual harassment complaint carries a negative stigma, it’s particularly important an employer address sexual harassment allegations the employer determines to be false. A false accusation could result when an employee just doesn’t understand the definition of sexual harassment – but there’s no malice. In this case, the employer can explain the definition of sexual harassment and determine whether there’s a need for more education in the workplace. But a malicious accusation has an element of intentional harm – and discipline of the accuser could be justified.
Manager & Supervisor Training. Employers are entitled to rely on managers and supervisors to comply with and to enforce a sexual harassment policy – but sufficient training is absolutely necessary to do so. And because of the insidious nature and the significant liability risks of sexual harassment, managerial and supervisory training is arguably most effectively delivered by external trainers, in a substantive depth, ideally including sessions by each of a legal, workplace and health professional with relevant expertise, customized to the workplace and the policy.
Employee Training. For the same reasons, a sexual harassment policy warrants stand-alone, specific and in-person employee training. Again, consider whether it’s most effective for an internal person to deliver this training, or if the circumstances warrant engaging an external expert to do so.
Policy Prosecution. Consistent, immediate and decisive enforcement of the sexual harassment policy is critical: seeing is believing for both complainants and potential perpetrators. Angus Reid’s #Metoo: Moment or movement reports that of the approximately 25% of employees who said they reported an incident of sexual harassment or assault, only about 9.5% said their employer was both responsive and took appropriate action; the remainder said their employer was responsive but didn’t take any concrete action, or was both dismissive and didn’t take any concrete action.
- Train managers & supervisors to monitor compliance. Managers and supervisors must be trained to stay alert to both overt workplace sexual harassment and to less obvious signs that it’s happening.
- Train managers & supervisors to act. They should also be trained to treat seriously and deal promptly and sensitively with any sexual harassment complaint they receive or about which they learn. In addition to the procedures under the policy, this includes thinking about whether the employer should take any interim measures. For example, depending on the parties involved, the employees involved might need to be separated physically, operationally or both, or any reporting relationship might require altering temporarily or permanently.
- Train managers & supervisors how to impose appropriate discipline for breaches of policy – and authorize them to do so. Managers and supervisors need to understand that the employer expects them, as the boots on the ground, to carry out this role – and to feel confident they have the employer’s support to do so. As in any case of workplace misconduct, an employer can only discipline an employee for workplace sexual harassment with “just and reasonable cause”: where conduct is incompatible with or prejudices a legitimate employer interest. If discipline is warranted, the discipline imposed must “fit the crime” and, where appropriate, apply progressive discipline principles. In the case of workplace sexual harassment, the normal factors relevant to determining whether, and to what degree, discipline is justified (including the length of the employee’s service and their previous disciplinary record, any record of the same type of misconduct, and whether they acknowledged their actions) also apply; however, additional factors include:
- The nature and extent of the conduct; for example, was it verbal or physical? Did it include threats of violence?
- Whether the incident was isolated or part of a larger pattern of behaviour. But employers must remember that regardless of what a policy says, there are few circumstances in which a court or arbitrator will uphold dismissal for cause based on a first-time policy violation or a single incident of sexual harassment – though they are more willing to treat violent conduct and threats of violence as serious misconduct for which a single incident might warrant a greater degree of discipline and potentially dismissal.
- Whether the employee was made aware that their conduct was unwelcome.
- Whether the employee was warned that other harassment incidents would result in further disciplinary action, including dismissal.
- Whether the employer had a sexual harassment policy in place that it consistently enforced and applied.
- Document everything (impeccably) and maintain the records (for a long time).
The limitation period (the maximum amount of time in which legal action can be taken after an incident has occurred) for a civil lawsuit varies by province. Many civil lawsuits are subject to a limitation period; for example a breach of contract lawsuit might be subject to a two-year limitation period. But in many provinces, there’s no limitation period for a civil lawsuit based on sexual misconduct, though the scope of misconduct exempt from any limitation period varies. Similarly, there’s no limitation period in Canada for serious (i.e., “indictable”) criminal offences, which can include sexual assault. The lack of a limitation period means workplace sexual harassment incidents have a long life – and could come back to haunt employers many years after they occur. It’s imperative that the employer be in a position to prove what happened, what it did, and that it acted diligently at the time – at any time, maybe even years later. To do so, employers must ensure they document everything about their actions and those of their employees in relation to workplace sexual harassment, and that they implement a system to collect and to maintain such documentary evidence in a secure and confidential manner. This includes detailed, legible and dated documentation of:
- The risk assessment process undertaken.
- The consultation process undertaken when drafting the policy.
- The training delivered to managers and supervisors around the sexual harassment policy.
- The training delivered to employees around the sexual harassment policy and attendance at that training.
- Every action of managers and supervisors in relation to an incident or complaint of sexual harassment from receipt or knowledge of it to its resolution.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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