In the last few weeks, the topic of sexual harassment has moved from legal offices and courtrooms to be daily headlines and part of the national conversation.
With the dismissal of popular CBC radio host Jian Ghomeshi and pending investigations of two Members of Parliament, the focus on what is appropriate and acceptable workplace conduct in the 21st century has taken centre stage.
The term “sexual harassment” emerged in the 1970s. I recall watching a televised confirmation proceeding of now US Supreme Court Justice Clarence Thomas in 1991 when Anita Hill, a former co-worker, came forward and described interactions she had had with him.
While we have come a long way in our understanding of sexual harassment, (“Mad Men” notwithstanding) it continues to be a problem that plagues our modern workplaces.
Sexual harassment is a form of discrimination. In the 1989 Supreme Court of Canada decisionJanzen vs. Plate Enterprises Ltd., Chief Justice Dixon stated:
“Sexual harassment in the workplace may be broadly defined as unwelcomed conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job related consequences for the victims of the harassment.”
What is sexual harassment?
It is behaviour:
· of a sexual nature
· that is unwelcomed
· that has detrimental consequences
There are two types of sexual harassment. The first is sexual solicitation. This involves a request or demand for some kind of sexual favour or service in exchange for something else (the ability to keep a job, a promotion, or increased compensation) The second is a hostile work environment. Both types involve an abuse of power of some sort on the part of the harasser. It is harassment if the person knows or ought to have known the behaviour is unwelcome.
Sexual harassment takes many forms and can be identified and categorized as follows:
· Comments about a person’s body, clothes, physical appearance (I love how that sweater hugs your body)
· questions or comments about a person’s sex life or relationship with a partner
· unwanted disclosure of sexual activities
· jokes including sexual topics
· using the terms “dear” “hunnie” “sweetie” when referring to employees
· sexual, romantic, or overly personal memos, letters, cards or emails
· brushing up against someone
· standing too close
· any touching beyond a hand shake
· neck/back messages
· leering, ogling, looking down the front of a women’s shirt or up her skirt
Displays/Communication in the workplace:
· of pornography on computers
· sending sexual or suggestive drawings jokes or photographic images
We have heard on the news recently that often when women come forward there is a reticence to believe their stories, they aren’t taken seriously and often they are seen as somehow complicit and/or at fault. This is what happened in a case with the City of Calgary. A clerk in the roads division came forward with allegations of sexual assault against a senior foreman. When the complaint came forward, there was a complete failure on the part of the City to meet its obligations under the collective bargaining agreement, human rights, the City’s policies andOccupational Health and Safety Act legislation. The assaults and the aftermath, including the largely flawed nature of the City’s response had a significant and lasting impact on the employee. In arriving at an award of $800,000 for loss of past and future income and general damages, the arbitration panel took into consideration the misconduct of the employer and in particular its attempt to shift the focus from the misconduct of a manager to the employee. In its ruling the following comments were made:
“Where the employer effectively puts the focus on the employee claiming harassment and de-emphasized the responsibility of its employees to avoid harassment, the employer will be exposed to liability to the employee for the adverse consequences arising from the hostile workplace.”
The Ontario Human Rights Tribunal recently outlined the following six elements that should be analyzed in determining whether an investigation is reasonable:
· the response must be prompt
· there must be corporate awareness that the conduct complained of is prohibited
· the matter must be dealt with seriously
· there must be a complaint mechanism in place
· the corporation must act so as to provide a healthy work environment
· management must communicate its action to the complainant
It is important for workplaces to have policies in place to have issues of sexual harassment promptly investigated and addressed. Failure to do so can be very costly for employers. Since sexual harassment at its core is an abuse of power, companies need to be careful when selecting an investigator. Often it is advisable for an external investigator to be retained, or alternatively ensure that the internal investigator is properly trained in these type of workplace investigations.