While 2017 brought about sweeping changes to the Employment Standards Act, 2000, 2018...brought about sweeping changes to the Employment Standards Act, 2000. While 2017 brought about employer panic and confusion over the legalization of cannabis, 2018... continued to do much the same. For yet another year, we were treated to several judicial assessments of the enforceability of termination clauses, and we continued to see the quantums of human rights and other damages increase. In a sense, everything old is new again.
Since the Ghomeshi scandal a few years back, our office has seen the number of sexual harassment cases increase substantially. That number has only risen since Harvey Weinstein and the #MeToo movement that followed it.
The viral social media campaign shed light on the pervasiveness of this behaviour in the entertainment and political arenas. Yet it’s become clear that sexual harassment extends far beyond into nearly every workplace in every industry.
#MeToo has not only laudably denounced this behaviour, it has also had the unfortunate effect of transforming the way workplace harassment allegations are dealt with. For example, many employers don’t realize that by dismissing an employee accused of sexual harassment before thoroughly investigating the complaint, they are violating the legal and moral duties they owe all their employees.
For those employers wondering how to reduce the risk of sexual harassment claims, the below 5 tips will be of assistance.
#1. Implement a defined sexual harassment policy.
At the very least, employers should have a policy in place that defines sexual harassment and confirms that such conduct is prohibited and will result in discipline, up to and including dismissal.
#2. Establish a complaint procedure.
The sexual harassment policy or program should outline the steps someone must take in order to make a complaint, as well as make clear who to speak to if they encounter sexual harassment. There should be multiple (ideally more than two) paths for employees to make confidential complaints, including a formal method. If an employee is able to reach out to the CEO or HR or a manager, they cannot later argue they had nowhere to go to communicate harassment. And they should have an option available in case the harasser is the primary recipient of such complaints.
#3. Conduct sexual harassment training.
It’s not enough to have a policy in place. Employers must ensure that policy is well-communicated. All staff should be informed as to what to do if they feel sexually harassed, and managers should be aware of how to respond to every complaint. Sexual harassment should be part of every employee’s onboarding training to help protect the employer against harassment suits or liability.
#4. Promptly investigate every sexual harassment complaint.
Employers should treat every complaint as if it were made in good faith, and take it seriously, regardless of whether it involves sexual assault or sexually demeaning jokes. It’s important to note that employers should not wait for the those who have been harassed to come forward. A formal complaint is not needed. An employer is obligated under the OHSA to investigate any incident, allegation, or suspicion of sexual harassment that comes to its attention. This has the added benefit of inspiring confidence in the process, and nurturing a culture that doesn’t tolerate sexual harassment.
#5. After the investigation is complete, respond properly to the complaint.
The employer must make a decision on a balance of probabilities (more likely than not) and provide corrective action when sexual harassment or inappropriate behaviour occurs. Employers should not punish complainants for coming forward, even where the allegations are ultimately unsubstantiated. This could be considered reprisal, and result in reinstatement and back pay under the Human Rights Code and the OHSA.
Contact Rudner Law Today
At Rudner Law, we represent both those employees that have been harassed and don’t know how to protect themselves, as well as those who have been accused of harassment and need to defend themselves. We also work with employers who have received complaints of harassment or are aware of potential harassment and need to be advised on how to handle same. The worst thing that anyone can do in such circumstances is nothing.