Law in Quebec

But a series of polls and studies make it plain: workplace sexual transgressions is still one of the most challenging workplace issues employers face. Half of Canadian women say they have been subjected to sexual harassment at work and 28 per cent have experienced non-consensual sexual touching in the workplace – and the overwhelming majority did not report the incidents, according to a survey by the Angus Reid Institute published on February 2018. Just as dismaying is the wide disconnect between employees’ reality and executives’ perceptions about the problem. A staggering 94 per cent of Canadian executives believe that sexual harassment is not a problem at their company, 93 per cent believe they have a corporate culture that prevents sexual harassment, and 69 per cent believe that it’s less of a problem than it was 15 years ago, according to a C-Suite Survey by the Gandalf Group.

“That means all the stuff is buried with organizations,” observed Janice Rubin, a leading employment Toronto lawyer considered to be a pioneer in the field of workplace investigations and co-founder of Rubin Thomlinson LLP. “And what the #MeToo has done is move the dial a little bit. So some of the stuff has become more overt.”

While the jury is still out as to whether workplace sexual harassment has become more prevalent, one thing is clear: employment and labour lawyers are busy, advising employers and employees alike, conducting investigations and training people to conduct investigations, and helping with training. “The calls are still coming,” said Gail Gatchalian, Chair of the Canadian Bar Association of National Labour and Employment section. “I expect this trend to keep happening, and I expect that the #MeToo movement will hit more and more industries. There’s been a bit of a shift culturally in society where women are feeling more supported and society is more willing to listen to a woman’s perspective on the issue.”

Employers, driven in part by apprehension, are now beginning to view workplace sexual harassment not only as a legal liability but also as a serious business and reputational risk. But for the most part they still tend to move forward only after they receive complaints, and not the carrying out the “hard proactive work” of transforming the organization’s culture to address the factors that give rise to abuse of authority, harassment and workplace sexual misconduct, as employment and labour lawyers strongly recommend. A 2007 University of Calgary study that itself analyzed data from 41 studies points out that the single biggest predictor of sexual harassment in the workplace is how permissive an organization is towards this behaviour.

Change begins at the top

Changing workplace culture, to be fair, is easier said than done. It may have become a cliché but the drive to change begins at the top. The struggles faced by the Royal Canadian Mounted Police are instructive. The RCMP has been plagued with workplace harassment, bullying, intimidation and sexual harassment for decades. In the past decade alone over 15 reviews were conducted at the RCMP and its organizational culture, issuing more than 200 recommendations, few of which have been implemented, revealed a toughly-word external review of harassment in the RCMP published last year. Despite repeated calls for action, the report underscored there was a distinct lack of commitment by generations of senior RCMP leaders to undertake the kind of broad-scaled, systemic change required. Instead most initiatives that were introduced were short-lived or ad hoc. “The problem with that is that if the membership is disaffected and feels that it’s not a genuine effort or concern then they are really going to be skeptical about any initiatives that are put in place,” explained Emma Phillips, a labour lawyer with Goldblatt Partners LLP and counsel to the RCMP external review.

At a minimum employers should have a written policy dealing with sexual harassment that has a clear and investigative procedure that requires investigations to be conducted competently, fairly and in a timely fashion. But above all it needs to be anchored by the will to put in place processes that address the well-known barriers that inhibit victims from coming forward such as the fear of reprisal, concern over future job prospects, a lack of confidence in the reporting process, or trepidation over not being believed. Or as Gatchalian, a partner with Pink Larkin LLP, puts it: “What workplaces need to think about is how to change the equation so that the cost of coming forward isn’t perceived to be outweighed by the desire of to make a formal complaint.”

Sexual harassment training can help, and can be a critical component to encourage change in workplace culture, affirm employment and labour lawyers.  Or it can hinder, and actually reinforce gender stereotypes. Inexpensive, off-the-shelf training videos, online software, or worse still, PowerPoint presentations (some subjected to it referred to it as “Death by PowerPoint”), can have a regressive effect as it becomes an object of ridicule. There’s no way around it. It may sound dreary and technical, said Phillips, but the most effective training is conducted by a “high-quality” person, is interactive and adapted to the particular workplace.

Bystander training

Making inroads is so-called bystander training. Traditionally used in emergency situations, bystander training has been adopted by the Canadian Armed Forces and is being taught at a growing number of colleges and universities. Research by the Australian Human Rights Commission reveals that bystanders were more likely than those preyed on to take action against sexual harassment. It seeks to encourage individuals to act less as “passive” bystanders and to be more active. Bystander training empowers individuals to recognize inappropriate conduct and trains them to intervene, sometimes discreetly and diplomatically and other times more assertively. In a word, sexual harassment becomes everyone’s business. “It can be a really effective way of reinforcing respectful workplace policies and culture, and also supporting individuals in the workplace when things do happen so that they feel there is a supportive network for them,” noted Phillips, who acted as counsel to the External Review on Sexual Misconduct and Sexual Harassment in the Armed Forces, and to an independent review commissioned by the UN on sexual abuse by peacekeepers. Rubin adds that bystanders are an underutilized resource, “and considering the fact that most of this stuff goes underground, bystanders can help bring sunshine into these situations.”

Other avenues that are being explored include implementing a whistleblower hotline to encourage co-workers to report sexual misconduct, said Marianne Plamondon, a Montreal employment lawyer with Langlois lawyers. The use of audits, or assessments, to determine the health or toxicity of the workplace is another area recourse that employers are exploring, added Plamondon. The U.S. Equal Employment Opportunity Commission has suggested rewarding supervisors if harassment complaints increase, at least initially, because “if employees are filing complaints of harassment, that means the employees have faith in the system.”

Workplace investigations

It seems, at least anecdotally, that employers are getting the message that once they become aware of a complaint they need to act promptly. In Ontario at least, that involves conducting investigations, something that employment and labour lawyers encourage employers to do regardless if they are legally obligated to do it or not.

But here again, caution is the word. Many investigations conducted internally or by a third party are poorly done. “That then is adding insult to injury,” remarked Rubin. “So you already have somebody coming forward and complained, which is a difficult thing to do, and the organization doesn’t do an adequate job of it.” Rubin knows that which she speaks of. She led the independent investigation of the Canadian Broadcasting Corporation following the dismissal of radio host Jian Ghomeshi, and her law firm was hired late last year to probe allegations of inappropriate behaviour within the Prime Minister’s Office. More recently still, Rubin Thomlinson was mandated by the City of London to review its harassment policies and develop an interim reporting system and investigation process after dozens of employees claimed they felt reports of harassment were not taken seriously.

There can be a price to pay from poorly conducted investigation into complaints of sexual harassment. In Smith v Vauxhall Co-Op Petroleum Limited, a wrongful dismissal case, the court held that an internal investigation that concluded that the plaintiff had committed sexual harassment and sexual assault against a subordinate was inadequate and its findings were incorrect. The court dismissed the claim, finding the plaintiff’s dishonesty regarding his relationship with his subordinate and his personal harassment were enough to justify a with cause termination. But the court found the allegations of sexual harassment were unfounded. It turns out the investigator did not interview witnesses, did not ask for specific details of the incidents, and it was not clear whether the investigator had the discussed the allegations with the plaintiff. Interestingly, the court left the door open for an adverse costs award. In another case, Joshi v. National Bank of Canada, the Ontario Superior Court of Justice concluded that a failure to provide an employee with an opportunity to respond to allegations made against him could amount to a breach of the employer’s duty of good faith.

“You want to have somebody who knows what they are doing and who knows from a process perspective but also understands substantively the area of law, and right now, you don’t always have both,” said Rubin. “Case law informs our work and deepens our understanding of what is fair and appropriate in the circumstances, as well as what legal decision makers do when they are reviewing workplace investigation processes.”

The case law however surrounding workplace investigations is emerging and barely existed some 15 years ago. Phillips says it will likely be a burgeoning area, particularly in Ontario, with the passage of Bill 132 which imposes a positive duty on employers to investigate allegations of workplace harassment. Under Bill 132, employers are required to take an investigation that is “appropriate in the circumstances.” “It’s not entirely clear what appropriate and circumstances mean,” noted Phillips. “It’s not defined. That legislation is very new so we don’t really know how it’s going to be interpreted.” Though early days, Phillips is also exploring with labour organizations whether it is possible to negotiate with employers a protocol for some sort of minimum procedural fairness framework within workplace investigations.

Case law surrounding sexual harassment too is evolving, albeit slowly. In large part that’s because relatively limited cases wind up before the courts. Few victims of workplace sexual misconduct are inclined or have the means to bring a civil action. Indeed, most employees “just want to be able to go to work, retain their employment and have a safe workplace to go to,” remarked Gatchalian. Still, arbitrators and Human Rights Tribunals, an avenue victims are expected to resort to increasingly, have been handing higher awards than ever before. In a recent case, the Ontario Human Rights Tribunal ordered a shoe-store owner and landlord to pay $200,000 as compensation to a woman for sexual harassment and assaults she suffered at his hand. “Human Rights Tribunals are showing that they are very concerned about these issues and they are taking the damages to the individuals who experienced them very seriously,” said Phillips. Plamondon believes that while jurisprudence has not changed much over the past few years, that may change. “We can expect judges to be less tolerant with inappropriate behaviour at the workplace following the wave of denunciations,” said Plamondon.

The same could be said of legislative developments, according to employment and labour experts. Besides Ontario, there have been statutory changes in British Columbia and in Manitoba, pointed out Rubin. Quebec introduced a draft bill that will amend the Act respecting labour standards that compels employers to adopt and make available to employees a psychological harassment prevention and complaint processing policy.

But all of it is slow moving, and so much more needs to be done, said Gatchalian.

“We need to look at the factors and workplace cultures that are allowing sexual harassment to occur,” said Gatchalian. “I’m not so sure how people are committed to implementing systemic cultural changes. If a workplace was really committed to implementing these cultural changes by for example increasing representation of women in leadership roles, then it would happen sooner. But I’m not sure how committed people are.”