Canadian Employment Law Today

CELT Oct 16 2013.qxp:celt 467.qxd 13-10-04 8:58 AM Page 4 October 16, 2013 CASE IN POINT: SEXUAL HARASSMENT On guard against sexual harassment Legal, social developments have changed what's acceptable in the workplace — employers should consider proactive approach BACKGROUND The risk of assuming retirement WORKPLACE ENVIRONMENTS where casual sexual teasing and harassment took place, such as those depicted in period shows like Mad Men, are a thing of the past. Social mores have changed and the law has changed to reflect them. And for the past thirty years, sexual discrimination has been a protected ground in human rights legislation. But it still happens. So what's the best way for employers to protect employees? HR lawyer Laura Williams discusses how employers can keep their employees safe from sexual harassment — and themselves from legal liability. | BY LAURA WILLIAMS | IT'S NO secret employment law in Canada is in a constant state of evolution, as everything from our collective values to workplace expectations shift and adjust to suit changing cultural perceptions and practices. Nowhere is this more evident than when considering the issue of sexual harassment in the workplace. There was a time not long ago when a pat on the behind, suggestive banter or even outright discrimination were part of many Canadian workplaces. In fact, it wasn't until 1983 that protections against sexual discrimination were entrenched in the Canadian Human Rights Act. Workplace cultures slowly began to change, jettisoning their discriminatory practices in favour of more inclusive policies where men and women were deemed equal and both parties were provided with opportunities to work in an environment free from harassment. Supreme Court defined sexual harassment In the 1989 case Janzen v. Platy Enterprises Ltd., the Supreme Court of Canada provided a formal definition of sexual harassment to help guide every- 4 one from employers to law-makers: "Sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment." That could include a range of behaviours, from touching or unwanted physical contact to sexual advances or comments, among many others — none of which are limited solely to the workplace or specific workplace interactions. Harassment can occur at work-related events, for example, and can affect men and women, executives and rank-and-file employees. In other words, its reach is virtually unlimited, making the enforcement of anti-harassment policies an ongoing challenge. Once the federal government took steps to prohibit workplace sexual harassment, provincial governments soon followed, enshrining sexual harassment provisions in local human rights and employment legislation. Sexual harassment was no longer simply morally questionable, it was illegal — and the onus was placed firmly on employers to provide safe and secure workplaces for their employees. In turn, employers began re-writing their policy manuals to prohibit sexual harassment across their workplaces, but cultures take time to transform. As with any shift in employment-related legislation, some employers were faster — and more inclined — to comply. Therein lies the challenge. Managing workplace sexual harassment is complicated because it involves monitoring, reinforcing and disciplining specific behaviours. As organizations grow, that task becomes increasingly difficult and complex; because harassment incidents often go unreported, it's also more challenging to identify and address. As such, there are no recent, conclusive studies quantifying the scope of the problem in Canada. Those of us in the legal profession rely instead on anecdotal evidence and mounting caseloads to remind us sexual harassment persists across industries. Recent allegations of sexual harassment across select divisions of the Royal Canadian Mounted Police, for example, remind us that the problem can plague any organization and is far from resolved. Of course, some employers may wonder why they should even bother to address the problem, when they could instead opt to take their chances and simply gamble that sexual harassment will go unnoticed and unreported in their workplace. Beyond the fact that employers are legally obliged to provide harassmentfree environments for their employees, many organizations face steep legal costs when dealing with sexual harassment or human rights complaints. The direct bottom-line impact, in other words, can be significant. But the costs don't end there. Employees that are harassed often feel humiliated, isolated and confused — many wonder if their Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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