Authors: Jana Linner, Teague Pushor
It has been approximately one year since the New York Times first reported allegations of sexual harassment against Hollywood producer Harvey Weinstein. Shortly after, actress Alyssa Milano tweeted, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” Although the phrase was originally coined some years before, it became a movement after it was tweeted by Milano and placed sexual harassment, both inside and outside the workplace, in the spotlight.
While sexual harassment allegations in the average workplace may not attract the same media attention as Harvey Weinstein, employers are more likely than ever before to be faced with sexual harassment allegations.
Employers have both moral and legislative obligations to prevent incidents of sexual harassment from occurring and to adequately respond to allegations of workplace sexual harassment. Failure to do so may carry with it not only legal consequences and liability, but also irreparable harm to an employer’s reputation.
One year after the #MeToo Movement began, it is clear that the expectations placed on employers, both by the court system and the court of public opinion, have increased. For example, in November 2017, the federal government introduced Bill C-65 which received third reading on June 18, 2018. Once enacted, Bill C-65 will increase the responsibilities already placed on federally-regulated employers with respect to harassment by amending the Canada Labour Code to require employers to investigate and report on any incidents brought to their attention.
Provincial legislation also addresses sexual harassment in the workplace and often mandates that employers establish a policy or program to prevent sexual harassment from occurring in the workplace.
How do you stop sexual harassment allegations in your workplace from being a front-page story?
Employers should create an effective sexual harassment policy consistent with applicable legislation that incorporates a training program which creates awareness and encourages complainants to come forward early. Complainants must be made to feel that their complaints are taken seriously and will be treated confidentially. Employers should encourage managers, supervisors and other employees to monitor compliance with the policy.
An important element of an effective sexual harassment is a procedure to report and investigate complaints. Employers should move away from formal complaints being the only triggering provision for investigations. Employers may want to put in place a centralized centre where complaints can be heard and where, with standard and objective criteria, it can be determined whether the information received warrants an investigation. Employers must strike a balance between due diligence and proceeding to investigate each complaint, as some behaviour may be frivolous, better handled under another policy or in another forum.
The investigation procedures must respect the complainant while also allowing the accused an opportunity to respond to the complaint.
Once an investigation is triggered, it is important that the respondent be notified, as the conduct complained of may continue and be perceived as aggravating the situation. This may result in increased damages being awarded against the employer.
Lastly, the entire investigation process must take place in a timely manner. Each step taken should be documented so that the employer is able to justify the steps taken throughout the investigation.
Overall, as a result of the rising tide of sexual harassment allegations, employers would be well served to ensure that they have the right policies, processes and employee training in place to adequately prevent and address sexual harassment in the workplace.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.