Canadian Employment Law Today - sample

Acknowledging the problem of sexual harassment Many organizations may think things aren't so bad but may be caught off-guard when it happens in their workplace BY LAURA WILLIAMS I s your organization prepared to prop- erly deal with sexual harassment? Many think they are, or think it's not a problem in their workplace, but they may be wrong. A study released in early April by the Hu - man Resources Professional Association (HRPA) found that among the association's members who responded to the survey, 17 per cent reported witnessing sexual assault or harassment in the workplace, while 19 per cent said they've seen an increase in harass - ment-related complaints since the #MeToo movement gained momentum last year. e report also found that 70 per cent of respon- dents felt their organization is receptive to anti-sexual harassment recommendations, but 24 per cent said those recommendations "are not always implemented." A separate study, released last year by To - ronto's Gandalf Group, noted an even more fundamental challenge: many in the business community feel their organizations are ha- rassment- and violence-free environments. at idealized view may be wishful thinking. Of the 153 C-suite executives surveyed — 95 per cent of whom were male — 94 per cent said that sexual harassment was not a problem in their organizations. Paradoxi - cally, 31 per cent acknowledged being aware of specific cases of harassment occurring in their workplaces, while only 25 per cent believed that most cases of harassment are even reported. A majority of executives surveyed by the Gandalf Group also said their organizations have the necessary policies and procedures in place to prevent sexual harassment or ad - dress it if it occurs. In reality, however, the perception of organizational readiness to handle the overwhelming challenge of man- aging harassment allegations usually far ex- ceeds most companies' ability to effectively respond. Many also lack effective, legally- compliant systems that would empower their employees to report incidents. Organizations unprepared In our experience, most organizations are unprepared to prevent, identify, respond and manage the fallout from incidents of workplace sexual harassment or violence. Organizations continue to be caught un- prepared despite the #MeToo reckoning and the spotlight that the downfall of notable Hollywood, political, media and business luminaries — not to mention other alleged sexual harassers — across the globe has shone on the issue of work- place harassment. Why? It starts with the fact that many organi- zations feel protected and believe they have met the full scope of their obligations by merely implementing the policies that pro- hibit the misconduct and outline the pro- cedures that may be followed to investigate alleged misconduct. ey fail to ensure that employees, who may be tasked with triaging and investigating complaints/incidents that allege sexual harassment, receive the nec - essary training and other tools required to respond internally to these circumstances. Also, from a prevention or risk mitigation standpoint, many organizations fail to ad - dress workplace practices and behaviours that leave organizations vulnerable to sexu- al harassment and violence exposures such as post-work cocktail social gatherings, ha- rassing management behaviour that is indi- rectly condoned through lack of discipline, or a failure to consistently apply workplace conduct expectations (assuming they're documented at all). e obligations that employers have with respect to addressing workplace harass - ment or sexual harassment may be specifi- cally set out in legislation. For example, in Ontario, the harassment provisions of the Occupational Health and Safety Act require employers to investigate every allegation of workplace sexual harassment, even on the suspicion of untoward conduct. at means launching formal investigations that include a neutral, fact-finding process supported by interviews with all individuals connected to the allegations — including witnesses — giving the respondent (i.e., the alleged harasser) an opportunity to respond to the allegations, and reviewing and evaluating all available evidence to come to accurate findings. Employers should be aware of the consequences of mishandling this process: if the investigation is deemed not compre - hensive by a Ministry of Labour inspector, a second, third-party investigation can be ordered at the employer's expense, while also potentially exposing the organization in question to added compliance scrutiny. Further, recent decisions such as Doyle v Zochem Inc. have resulted in additional damages being meted out against employ - ers who fail to adequately and genuinely conduct an investigation process. Failure to properly address harassment complaints/ incidents can be very costly to employers, potentially leading to a finding that the em - ployer behaved in bad faith. In Doyle, the cursory nature of the investigation con- ducted, in which the employer spoke with the alleged harasser after the employee's complaint but never followed up with the employee, resulted in an award of moral damages against the employer for the breach of its implied contractual obligation of good faith in the manner of dismissal of its employee, in addition to the damages for wrongful dismissal and sexual harassment. More than legal risks In addition to the legal implications re- lated to improperly responding to inci- dents of workplace sexual harassment, employers need to also consider the risk to their employer brand. As every em- ployer knows, in a tight labour market, top talent can be discerning when decid- ing whether to join an organization. If a company's reputation online is one of disrespect for basic workers' rights, or of acceptance of inappropriate behaviour, there's a very good chance those prospec- tive employees will offer their services to a competing organization. In short, organizations that haven't al- ready done so must take workplace sexual harassment and sexual violence seriously, or risk significant legal and business expo- sures. A safe approach is to recognize that misconduct could occur in your workplace at any time, which necessitates ample prep- 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: SEXUAL HARASSMENT RIGHT now, somewhere in Canada, there is a very strong chance that an individual is being sexually assaulted or harassed in the workplace. But as two new studies show, many business owners, managers, and HR professionals are oblivious to the misconduct occurring in their midst. BACKGROUND

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