This time last year, comedian Louis CK’s career was on top of the world. He had several television production deals in the works, his live appearances could sell out practically any venue, and he was beginning to take on dramatic film work as well. Then, as the #metoo movement began to gain steam, CK admitted to the truth of numerous accuser’s stories – that he had committed numerous acts of sexual misconduct and indecent exposure. CK’s career success came to an instant halt.
Or so it seemed. In late August, a mere 9 months after these revelations came to light, CK made a brazen return to the stage to perform a live comedy set. According to accounts of the evening, CK received an ovation from the audience, and made no mention of the past behaviour that had derailed him not even a year prior.
Applause, however, was far from universal. CK’s attempt to rehabilitate his image with such speed, and no public acknowledgement of his prior wrongdoings, was widely viewed as callous and insensitive both to his victims, and to the #metoo movement as a whole.
CK is not alone in his efforts to return to the limelight. After four years of near-obscurity, former CBC radio host Jian Ghomeshi has now published an essay for the upcoming issue of the New York Review of Books entitled Reflections From A Hashtag. Ghomeshi offers some apologies for his past behaviour with women, but on the whole the essay bemoans the notoriety and hardships he underwent (both emotional and financial) after the accusations against him were made public. As Ghomeshi himself describes it: “One of my female friends quips that I should get some kind of public recognition as a #MeToo pioneer. There are lots of guys more hated than me now. But I was the guy everyone hated first.”
The CK and Ghomeshi stories offers some strong reminders to both employers and employees that even after initial repercussions of #metoo are dealt with, that is not the end of the story. Earlier this Spring, we wrote about some steps employers can take to help prevent unwanted incidents of workplace harassment. However, there is another challenge that awaits employers in the coming months and years as those accused in the #metoo movement begin to resurface.
Where do we go from here?
How will employers handle the aftermath of #metoo as the individuals accused attempt to rebuild their professional lives? How should an employer handle a job applicant that they know was found to have engaged in sexual harassment in the past? The answer is not clear cut, but there are considerations for employers to be aware of as they navigate these difficult waters.
Most individuals, save for perhaps those who commit the most unspeakable offences, are entitled to the opportunity to rehabilitate and make amends. Whether they serve time in a correctional facility, perform community service, complete courses, or some other form of penalty, the goal is always to healthily re-integrate the individual in society, including the opportunity to work again. Additionally, one’s record of offences is a prohibited ground of discrimination under Ontario’s Human Rights Code, which ensures that an individual cannot be discriminated against in employment because of their prior misdeeds. Theoretically, sexual harassment should not prevent someone from working for the rest of their lives.
Employers Are Always Responsible
Yet employers must also weigh their responsibility to keep both employees and customers safe. Employers have a duty in Ontario to keep employees free from workplace violence and harassment, including workplace sexual harassment. The Occupational Health and Safety Act in Ontario puts a strict onus on employers to have a violence and harassment policy that includes responsibilities surrounding reporting, investigations, and other protective mechanisms for employees (see post above).
Welcoming an individual who is publicly known for, and has even admitted to, prior sexual assault can pose some level of risk. This can be a tricky balancing act when employers are simultaneously required not to discriminate. No matter who is on the premises, employers are always advised to have thorough workplace policies and systems in place to protect their workplace, and their workers, from workplace sexual harassment and assault.
The Bottom Line
The most notorious of those called out in the #metoo scandal are likely a long way off from a triumphant career recovery. Jian Ghomeshi will not again achieve the untarnished celebrity in which he talks about formerly basking in. Harvey Weinstein and Kevin Spacey are unlikely to win Academy Awards in the foreseeable future, and Bill Cosby’s obituary will detail his allegations with as much focus as his career highlights.
However countless other individuals accused of impropriety, especially if they were not criminally convicted, will sooner or later return to the workforce. While they are naturally expected to have reformed and rehabilitated, employers will need to explore how they plan on handling these individuals as they begin to arise in greater numbers.
At Rudner Law, we represent both employees who have been victims of harassment, as well as those who have been previously accused. We also represent employers, both in assisting them with drafting their workplace policies, and in implementing them when difficult situations arise. Any situation involving sexual harassment is tricky, and good advice can be the key to getting it right the first time.
