Canadian HR Reporter

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Does one of your employees have We'll be there. 1-866-599-2720 www.carepath.ca THE CANCER ASSISTANCE PROGRAM Anita McGowan, RN, CON(C), OCN Head Oncology Nurse Manager experience from other men tends not to be romantic, with a physi- cal motive or sexual attraction — it's more of a dominance kind of behaviour as a form of bullying or what we might call gender polic- ing," she said. And it wasn't recognized as bullying or harassing behaviour until recently, said Stockdale — in the late 1990s, researchers started looking more seriously at male sexual harassment. In large part, men are beginning to feel more comfortable speaking out about their experiences with harassment, said Strauss. "Men are feeling more of a free- dom to speak out about it, partic- ularly as we look at the expansion of what it means to be masculine and feminine, and the influx of more acceptance of LGBT peo- ple," she said. "ey're feeling more freedom to come forward and complain." But some organizations are more receptive to these kinds of complaints than others, said Strauss. "When I go to organizations that are predominantly male, I tell them that they are at an increased risk for both bullying and harass- ment, particularly sexual harass- ment," she said. "Both genders are at an in- creased risk for being targeted be- cause of the male infrastructure. e male infrastructure, it's got more of that machismo. "ey're afraid they will be la- beled a 'pansy,' et cetera, if they come forward and complain." Training, education So what should employers do dif- ferently? First and foremost, any claim of harassment, whether the victim is male or female, has to be taken seriously, said Chinsky Matuson. "And, in most situations, the managers don't have the skills to do that. ey need to take it to their manager or to HR," she said. Training and education are also of critical importance. "It's a good practice to have… people understand where those lines are. I've done a lot of inves- tigations around sexual harass- ment and nine out of 10 times, the person who's being accused of harassment will say, 'I didn't know that what I was doing was harassment.' And the majority of times, almost every single time, I honestly believe them," said Chin- sky Matuson. "ey really didn't know. at doesn't make it right… but had that person been coached or had access to training, might that have been prevented? Probably." Many organizations are still not providing the kind of training they need to be providing employees, said Strauss. "at said, training is not the be- all end-all. Training just begins the discussion. So they need to have comprehensive policies, for exam- ple, that identify sexual harassment and that it can be gender-based and not just sexual. So that needs to be included in their definition in their policy. en, they need to have a subject-matter expert do their training — and it needs to be more than just an hour." e training needs to be longer than a 20- or 30-minute online program, she said. "ey also need to make sure that they're including the more subtle and nuanced forms of sex- ual harassment." Anyone can be a victim, perpetrator And the bottom line for employ- ers? Anyone can be a perpetrator and anyone can be a victim, said Stockdale. "(Employers should) not dis- criminate against men as victims. If a man comes forward with a complaint of sexual harassment, whether it's by a man or a wom- an, it needs to be investigated and taken as seriously as when a woman complains. Men can be harmed by sexual harassment just as women can be, and one of the issues of sexual harassment is it doesn't just affect the individual who is the target of the harass- ment, it tends to affect everybody else in that work environment as well," she said. "Management may have to take a strong stand and show with their words and with their actions that sexual harassment is not tolerated regardless of who the target is, and regardless of who the perpetrator is." Treat all complaints seriously HARASSMENT < pg. 8 "Men are feeling more of a freedom to speak out about it, particularly as we look at the expansion of what it means to be masculine and feminine." machine and his health and safety complaint. It was unlikely CATSA was aware of his colourblindness previously as the government agency would probably act imme- diately upon learning a certified screening officer was colourblind, said the arbitrator. Employer acted once it found out about disability The arbitrator noted that Cic- cone's ability to perform his job was not under question but rather what could happen if Cic- cone was allowed to continue working the X-ray machines once Garda became aware of his vision deficiency. It was contrary to certification criteria for someone who could not see normal colours to oper- ate the X-ray machines, and once Garda became aware of Ciccone's limitation, it acted quickly, said the arbitrator. Ciccone's employment wasn't threatened because of his dis- ability, nor was he discriminated against. Instead, he was simply re- moved from working at the X-ray function of the screening officer job, according to CATSA policy, said the arbitrator. "What needs to be made per- fectly clear at this juncture is that (Ciccone) was not discharged be- cause he was colourblind. Rather, the evidence revealed that every attempt was made to involve him in an accommodation process." e removal of Ciccone from X-ray functions created a dis- tinction between him and other employees based on his personal characteristic of colourblindness, said the arbitrator. However, this distinction didn't impose a burden or disadvantage as he was "denied nothing that would be applicable to other screening officers other than that he would no longer be required to work the X-ray machine." He was still able to perform numerous other duties. As a result, Garda's removal of Ciccone from X-ray functions was not discriminatory, said the arbitrator. In addition, the reason for re- moving Ciccone from X-ray func- tions was related to public safety and related to a bona fide job requirement — the ability to see normal colours — which Ciccone didn't have, said the arbitrator. Ciccone's termination of em- ployment was also not discrimi- natory because it wasn't because of his colour vision deficit, but rather his refusal to co-operate in the accommodation process that left Garda with no choice, said the arbitrator. e dismissal was upheld but Garda was ordered to pay Cic- cone for the one month he had remaining on his certification at the time he was not permitted to work any longer when he could have worked all duties except for X-rays. For more information see: • Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Job requirement DISMISSAL < pg. 5 "Ciccone was not discharged because he was colourblind. e evidence revealed that every attempt was made to involve him in the accommodation process."

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