Canadian Employment Law Today - sample

Workplace sexual harassment: 4 pitfalls to avoid Employers are still struggling to address and manage sexual harassment complaints; these common pitfalls should be considered when drafting policies BY LAURA WILLIAMS I t's been nearly four years since alle- gations of sexual assault, harassment and bullying against former CBC ra- dio host Jian Ghomeshi rocked the Canadian legal landscape. Ghomeshi's ensuing trial on assault charges and the firestorm of media cov- erage that followed helped lay the foun- dation in this country for #Metoo — a game-changing movement that inspired countless individuals to come forward with stories of workplace sexual assault and harassment, all of which coincided with sweeping changes to labour and employment legislation and policies designed to crack down on the kind of harassing behaviour that was once commonplace across workplaces. e Ghomeshi incident was just one in a long list of allegations of sexual harass- ment — and in some cases, worse — lev- elled against powerful media, political and business luminaries in Canada and around the world. While it's indisputable that work- place relations have been forever trans- formed by #Metoo, many employers are still struggling to effectively address and manage sexual harassment complaints in a legally compliant manner. Since the passage in Ontario of Bill 132, the Sexual Violence and Harassment Action Plan Act, 2016, employers have been required to investigate all incidents and complaints of workplace harassment, as appropriate in the circumstances. Or- ganizations must now have a workplace harassment policy, a written workplace harassment program to implement the policy, and procedural requirements for investigations pursuant to the Occupa- tional Health and Safety Act. Ontario's Ministry of Labour also has the power to mandate third-party investigations at an employer's expense if an investigation is deemed inadequate. While Ontario's leg- islation held employers to a much stricter standard than any other province's until recently, other provinces, such as Alber- ta, have now implemented similar legis- lation since Bill 132 came into force. With such clear requirements, why do so many organizations mishandle al- legations of workplace sexual assault? e simple answer is that investigations are complicated, time consuming, costly and can inflict significant damage to an organization's employee culture. ere are many leaders who would prefer to complete them as quickly as possible, but most lack adequate training to manage what is a highly procedural undertaking that involves an even higher degree of le- gal risk. Take the Steven Galloway incident as a recent example. e author and former University of British Columbia professor — who faced a lengthy sexual harassment investigation for alleged workplace mis- conduct — was recently awarded $60,000 by an arbitrator for breach of privacy and reputational damage after it was deter- mined that the school breached a con- fidentiality agreement stemming from a previous award. A sexual harassment investigation by former B.C. Supreme Court Justice Mary Ellen Boyd cleared Galloway of all charges that were used to justify termination for what UBC called a "record of misconduct that resulted in an irreparable breach of trust," save for finding that Galloway did engage in a ro- mantic relationship with a student that he failed to disclose to school adminis- trators. UBC has paid Galloway about $240,000 in damages to date — costs that could have been avoided. e 2017 case Doyle v. Zochem Inc., offers another example of sexual ha- rassment mismanagement. Zochem, a Brampton, Ont.-based manufacturer of zinc oxide products, was required to pay the employee Doyle $60,000 in moral damages, general damages totaling 10 months' salary in lieu of notice of termi- nation, and $25,000 in damages for a sex- ual harassment claim under the Human Rights Code. e trial judge found that the company breached its obligation to act in good faith after it dismissed Doyle without cause when she raised workplace safety concerns, and had failed to con- sider or properly investigate persistent sexual harassment targeted against her. Cases such as Doyle highlight the in- sidious impact that sexual harassment can have on a workplace — everything from lost productivity due to gossiping and rumour-mongering, to decreased performance and team destabilization. In Doyle's case, her mental health was ad- versely affected due to the treatment she received from co-workers — a common side effect of workplace harassment and bullying. e impact on organization- wide employee engagement is also wide- spread. Consider a survey conducted by the CBC in the wake of the Ghomeshi affair. It found that 69 per cent of em- ployees reported having strong "pride of association" with the broadcaster, down from 92 per cent three years earlier. Overall employee satisfaction with their employer also plummeted, to 42 per cent from 69 per cent. 4 common pitfalls While many facets of a sexual harassment investigation can (and often do) go wrong, being proactive and putting the right HR law policies and procedures in place can help mitigate risk. Here are the four most common pit- falls, and how to avoid them: Inadequate investigations. Organiza- tions in provinces such as Ontario not only have a duty to investigate all allega- tions of sexual harassment, but to do so in compliance with provincial employ- ment standards and human rights legis- lation. at means taking all complaints and incidents of harassment seriously, ensuring internal investigators are thor- oughly trained and establishing compre- hensive investigation procedures that set out process considerations, includ- ing when to outsource the investigation. at's because many organizations lack the in-house skills and experience to ef- fectively manage a complex inquiry into 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: SEXUAL HARASSMENT CANADA'S #METOO movement arguably started four years ago with the Jian Ghomeshi harassment scandal. Despite the fact it's been a few years now, some employers are still having trouble negotiating the new landscape. Proactive and clear policies can help mitigate the risk and avoid the 4 common pitfalls employers often encounter. BACKGROUND

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