Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2018 News | June 2018 | CSR Acknowledging the problem of sexual harassment Many organizations think they don't have a problem but may be caught off-guard when harassment happens in their workplace BY LAURA WILLIAMS IS YOUR organization prepared to properly deal with sexual ha- rassment? 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 Human Resources Pro- fessional Association (HRPA) found that among the associa- tion's members who responded to the survey, 17 per cent re- ported witnessing sexual assault or harassment in the workplace, while 19 per cent said they've seen an increase in harassment- related complaints since the #MeToo movement gained mo- mentum last year. The report also found that 70 per cent of respondents felt their organiza- tion is receptive to anti-sexual harassment recommendations, but 24 per cent said those rec- ommendations "are not always implemented." A separate study, released last year by Toronto's Gandalf Group, noted an even more fun- damental challenge: many in the business community feel their organizations are harassment- and violence-free environments. That idealized view may be wishful thinking. Of the 153 C-suite execu- tives surveyed — 95 per cent of whom were male — 94 per cent said that sexual harassment was not a problem in their organi- zations. Paradoxically, 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 sur- veyed by the Gandalf Group also said their organizations have the necessary policies and procedures in place to prevent sexual harassment or address it if it occurs. In reality, however, the perception of organizational readiness to handle the over- whelming challenge of manag- ing harassment allegations usu- ally far exceeds most companies' ability to effectively respond. Many also lack effective, legally- compliant systems that would empower their employees to re- port incidents. Organizations unprepared In our experience, most organi- zations are unprepared to pre- vent, identify, respond and man- age the fallout from incidents of workplace sexual harassment or violence. Organizations contin- ue to be caught unprepared de- spite 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 workplace harassment. Why? It starts with the fact that many organizations feel protect- ed and believe they have met the full scope of their obligations by merely implementing the poli- cies that prohibit the miscon- duct and outline the procedures that may be followed to investi- gate alleged misconduct. They fail to ensure that employees, who may be tasked with triag- ing and investigating complaints and incidents that allege sexual harassment, receive the neces- sary training and other tools re- quired to respond internally to these circumstances. Also, from a prevention or risk mitigation standpoint, many organizations fail to address workplace prac- tices and behaviours that leave organizations vulnerable to sex- ual harassment and violence ex- posures such as post-work cock- tail social gatherings, harassing management behaviour that is indirectly condoned through lack of discipline, or a failure to consistently apply workplace conduct expectations (assuming they're documented at all). The obligations that employ- ers have with respect to ad- dressing workplace harassment or sexual harassment may be specifically set out in legisla- tion. For example, in Ontario, the harassment provisions of the Occupational Health and Safety Act require employers to inves- tigate every allegation of work- place sexual harassment, even on the suspicion of untoward conduct. That means launch- ing formal investigations that include a neutral, fact-finding process supported by interviews with all individuals connected to the allegations — including witnesses — giving the respon- dent (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 mishan- dling this process: if the inves- tigation is deemed incompre- 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 or- ganization in question to added compliance scrutiny. Further, recent decisions such as Doyle v. Zochem Inc. have re- sulted in additional damages being meted out against employ- ers who fail to adequately and genuinely conduct an investiga- tion process. Failure to properly address harassment complaints and incidents can be costly to employers, potentially leading to a finding that the employer behaved in bad faith. In Doyle, the cursory nature of the inves- tigation conducted, 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 ad- dition to the damages for wrong- ful dismissal and sexual harass- ment. More than legal risks In addition to the legal im- plications related to improp- erly responding to incidents of workplace sexual harassment, employers need to also consider the risk to their employer brand. As every employer knows, in a tight labour market, top talent can be discerning when deciding whether to join an organization. If a company's reputation on- line is one of disrespect for basic workers' rights, or of acceptance of inappropriate behaviour, there's a very good chance those prospective employees will offer their services to a competing or- ganization. In short, organizations that haven't already done so must take workplace sexual harass- ment and sexual violence seri- ously, or risk significant legal and business exposures. A safe approach is to recognize that misconduct could occur in your workplace at any time, which necessitates ample preparation and the capacity to respond to misconduct. That starts by recognizing the need to develop a set of policies and procedures that define ac- ceptable conduct expectations and hold everyone from the C- Relatively > pg. 8 Many organizations fail to address practices and behaviours that leave them vulnerable

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