On October 19, 2017, in the wake of #MeToo and the allegations of sexualized violence against Harvey Weinstein, I spoke to CBC Radio’s Information Morning Halifax about workplace sexual harassment. The interview, which you can listen to here and read a summary of here, provides a good primer for employers on sexual harassment law:
Employers should have a written policy dealing with sexual harassment that has a clear complaint and investigation procedure and that requires investigations to be done in a timely way and in a way that is competent and fair.
Barriers to Coming Forward
As we know from the Weinstein story, and the many others that followed, women often do not make formal complaints about sexual harassment because of the many barriers they face, including the fear that they will be blamed or that the employer or harasser may retaliate against them. In my view, employers should have an external complaint and investigation process that employees can access if they do not feel comfortable with the internal complaint system. This is especially so if the alleged harasser is a supervisor or manager.
What if it’s Criminal?
Sexual harassment in the workplace can be on a spectrum from verbal harassment to unwanted sexual touching. Even if the conduct is criminal in nature, and even if the respondent is the subject of charges, the employer is not absolved of responsibility for providing a safe and harassment-free workplace, and for investigating and addressing the alleged conduct in the workplace.
Options for Employees
Employees who are sexually harassed or assaulted at work may can file a complaint with the Human Rights Commission or file a complaint under the Occupational Health and Safety Act if the conduct constitutes violence within the meaning of that Act (some jurisdictions include harassment in their occupational health and safety legislation). If the harassment is intolerable, the employee could sue the employer in court for constructive dismissal, or if they have enough years of service with their employer they may be able to make an unjust dismissal complaint under provincial or federal labour standards legislation.
Inadequacy of Complaint and Investigation Process
We cannot continue to rely solely on complaint and investigation processes to change the culture and the power imbalance in workplaces that allow sexual harassment to happen and to continue unaddressed. Employers should take proactive steps to change workplace culture, including the implementation of bystander training. The prevention of sexual harassment should be the responsibility of everyone in the workplace so that the burden does not always fall on the victim of the harassment.
For more information on workplace sexual harassment and workplace investigations, contact Gail L. Gatchalian.