October 27, 2017

Respect at Work: What Are We Talking About?

Claire E. Milton, Q.C. Authored by: Claire E. Milton, Q.C., ICD.D Posted in: Employment Law

There have been a few high-profile cases in the news lately that have everyone talking about respect in the workplace, or lack thereof. When something like the Harvey Weinstein story or the Jian Ghomeshi trial hits the newsstands, it is easy to characterize the ensuing public reaction as just that; “reactionary,” and we wait for the outrage to fade. However, a 2014 survey from Angus Reid says that three in ten Canadians experience sexual harassment at work, and the Ontario Human Rights Commission says that in some industries, particularly the restaurant industry, it is so frequent that it’s seen as “part of the job.”

Way back in the late ‘70s, I quit one of my first waitressing jobs in a posh restaurant after enduring a series of indignities from both co-workers and patrons. The straw that broke this camel’s back was a man who thought it was funny to put his hand up my skirt when I was carrying a large tray of hot dinners on my shoulder. Now, we are witnessing a societal tipping point, as so many people are coming forward with similar and worse accounts. The #metoo social media hashtag is appearing everywhere, as women (for the most part) find their voice to make it clear the tipping point for workplace harassment has been crossed.

Employers must take notice because, in this environment of open condemnation, people are simply not going to “take it” anymore. It is more likely now that workers who experience harassment will do something about it. Therefore, if they have not already done so employers should be taking steps to:

• Assess their workplace culture for warning signs
• Introduce or review policies aimed at eradicating sexism and harassment
• Proclaim a commitment to a fully respectful and harassment-free workplace
• Conduct training to empower employees to intervene

Before getting into the details of how employers should deal with harassment, let’s review what can happen to managers and employers who ignore the problem.

In Halifax, a 51-year old man is going to jail for eight months for sexually assaulting a woman who reported to him. He gets to serve the sentence on weekends. He repeatedly groped her and made sexual comments, all under the guise of joking around. The judge in the case praised the courage of the young woman complainant and noted that she could not get other managers in the workplace to help her. One of the incidents was caught on video – he was seen pulling her onto his lap and putting his hand under her skirt. Another young female employee testified that he hoisted her over his shoulder and she had to fight him off as he slid his hand up her skirt. Both women complained to a manager, but their “complaints fell on deaf ears.” The judge noted that the man was fired, but he has since found another job, and apparently is even up for promotion. The defence presented ten reference letters praising his work ethic and honesty. The man apologized and said he never meant to hurt anyone. He defended himself by asserting that he was a “joker”.

The behaviour of this man was egregious, but it is not unusual. I have advised employers on many occasions in relation to similar facts involving completely inappropriate and overtly sexual harassment. This case involved a criminal prosecution of the individual, but employers should take note that a failure to appropriately respond to a workplace complaint can result in employer liability.

Recently, the Ontario Superior Court of Justice recognized a free-standing civil tort of harassment and awarded a former RCMP member $140,000 in general and special damages after finding the employer harassed the member and failed to take allegations of harassment seriously. In wrongful termination cases, it has historically been difficult to increase damage awards beyond the typical calculation of “wages in lieu of notice,” but we now see a trend in cases, particularly those involving “constructive dismissal” where employees are leaving intolerable workplaces and add claims for mental suffering and harassment to claims for notice.

In a case involving Walmart, an Ontario jury awarded a former employee over $1.4 million based on workplace harassment and violence that was found to constitute constructive dismissal. Both Walmart and the harasser were ordered to pay. The total amount was reduced on appeal, but the supervisor was still required to pay $110,000 and Walmart $300,000 to the employee. Walmart was found to have acted “reprehensibly” in failing to take the employee’s complaints seriously, failing to discipline the supervisor or intervene, threatening reprisal, and contravening its own workplace policies.

Under occupational health and safety legislation, employers are required to have a workplace that is safe. A safe workplace is free of discrimination and harassment, including sexual harassment. This requires employers to have a policy that deals with the subject and includes a clear complaint and investigation procedure. Investigations must be conducted in a timely way, and the persons conducting them should be trained to ensure the process is proper and fair. As well, sexual harassment can constitute discrimination under human rights legislation. Supervisors and managers are expected to know what to do if a complaint is lodged, and they are expected to recognize and respond to harassment, whether a complaint is filed or not. A manager who sees unacceptable behaviour in the workplace is obligated to address the problem, and they take on potential liability if they fail to take steps to ensure a safe workplace.

So, if you are an employer what should you do?

1. Take stock. Sit down and have an honest look at your workplace. Think about what you have seen and heard over the last few years and ask yourself whether your culture is healthy and free of workplace conflict. Do you have that “one person” who regularly belittles coworkers or tells sexist jokes and claims “just joking” in defence? Do you have policies and procedures in place related to harassment and do you regularly ask workers to reflect on them? Do you conduct workplace training on the policies? Do you set the expectation that harassment is not tolerated? Have you ever conducted a survey to gauge how your people feel about their workplace? Work up a gap analysis so you can decide on the appropriate course of action. Perhaps its time to build a program or improve an existing one. Perhaps it time to say “stop” and mean it to that one person.

2. Do the work. Develop or improve a policy or policies aimed at creating and preserving a healthy, respectful workplace. Ensure your documents cover the bases:

• A clear statement that disrespectful behaviour will not be tolerated
• Require mandatory reporting of incidents that allows for confidentiality and protection from reprisals

The policies are the easy part. Require all leaders to be role models for professionalism and respectability. Communication of the policy is vital – it must “live and breathe” in the workplace. And deal with problems as soon as they are identified. Your best technical performer may be the worst offender as far as his peers are concerned. Ensure that everyone knows that behaviour is just as important as getting a job done.

3. Train. Managers and supervisors should be equipped to recognize and respond to workplace harassment of any kind. It is not acceptable for leaders in an organization to turn a blind eye or avoid a situation because it is uncomfortable. Provide training when policies are introduced, when new employees are hired and refresh understanding on a regular basis. Provide orientation sessions to all employees with respect to harassment policies. Publicly and widely communicating that respect is mandatory goes a very long way to preventing harassment allegations.

4. Respond. If, despite your best efforts, a complaint comes forward, be prepared to investigate and respond in a proper manner. If you do not have the internal resources to manage a complaint, know who you are going to call to help you. Do not make a bad situation worse by proceeding without knowledgeable advice.

Call Claire E. Milton, Q.C. at BoyneClarke LLP for help and advice on building a healthy workplace.

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