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Up close and personal

By Sheryl L. Johnson


We have all heard men describe the workplace climate during and following the initial foray of the #MeToo movement as being a “scary place for a man.” This was particularly the case when they witnessed the spike in the number of sexual harassment allegations being made, including those from decades prior.

The aged allegations heightened concerns as they surely occurred at a time when the workplace standards of conduct were far different from today’s and were likely now impossible to investigate given the passage of time.

As a result, many men were examining all of their previous workplace conduct fearing that an allegation would be raised against them and that they would be faced with one of two swift outcomes: their employer would summarily terminate their employment or they would be tried in the court of public opinion – without due process. In tandem, they began to excessively monitor their workplace conduct, including ceasing to mentor female employees and avoiding having any one-on-one meetings with women given a growing climate of distrust and unease between the sexes. They feared the mighty wrath of social media and/or their employer’s fear of such wrath, which in any event would likely result in the irreparable tarnishing of their reputations and the annihilation of their careers, regardless of their innocence or guilt and the veracity of the allegations.

The #MeToo movement has positively brought to our public consciousness and the forefront of our social discourse the fact that workplace sexual harassment remains a major and systemic workplace problem across all industries and that it is not just a “women’s issue.” Further, the #MeToo movement removed much of the stigma surrounding coming forward with sexual harassment allegations, including those that went long unreported.

However, alongside these positives there is a carelessness with respect to the impact of the words being used in this social discourse. This carelessness adds a layer of stigma given its overinclusion of all forms of sexual harassment in the definition of sexual violence; there are degrees and continuums. Workplace sexual harassment that escalates into predatory, abusive and sexually violent conduct is statistically the least common form of sexual discrimination. Using the loaded words of “abuse” and “violence” to indiscriminately describe all forms of sexual harassment does a disservice to survivors of sexual violence by elevating all forms of sex discrimination into perceived equally traumatic events. For example, there is a sizeable difference between being sexually assaulted and overhearing inappropriate sexual jokes and banter that make you feel uncomfortable.

Using such loaded words also inequitably characterizes all respondents as some form of sexual predator. Additionally, there are differences in the remedies available to prevent future incidents of sexual harassment. Incidents of hostile environment sexual harassment and the lesser forms of quid pro quo sexual harassment will likely be reduced through understanding created by education and workplace training. However, such corrective measures will likely have little to no impact on the antisocial behaviour involved in the more offensive forms of quid pro quo sexual harassment.

Remember, sexual harassment has long been recognized in Canada as a form of sexual discrimination and has been prohibited by our laws for nearly four decades.  Knowing it is wrong has not prevented organizations from getting it wrong and many still overreact to allegations of sexual harassment in the current climate with a zero-tolerance mindset – where allegations don’t even need to be proven – or continue to underreact, particularly where the alleged harasser is a high performer. In relation to the latter, a November 2017 federal report revealed that two-fifths of persons surveyed who stated that they recently reported workplace sexual harassment complaints advised that their complaints were never addressed.

In the current climate, we have focused more on the salacious quid pro quo examples of sexual harassment and overlooked the fact that sexual harassment includes discriminatory conduct aimed at a person because of their sex, gender, gender identity, gender expression and sexual orientation. Notably, workplace woman-on-woman sexual harassment is on the rise with targets being just as unlikely to report it as survivors of sexual assault due to the stigma attached to this form of sexual harassment. Added to this, many organizations don’t understand or take into account “bystander effect,” “bystander apathy” and the fact that all workplace participants – from the most senior to the most junior – have a role, including a statutory one, in preventing workplace misconduct such as bullying, harassment and discrimination.

Further, confusion still abounds as to what does and doesn’t constitute “consent” and what is and isn’t sexual harassment. Complicating matters further, there are perceptual differences between generations and the sexes as to what constitutes sexual harassment.

Why the bewilderment? While the Weinstein Company was the first high-profile company to file for bankruptcy as a direct result of sexual misconduct allegations that spread like wildfire on social media and ignited the #MeToo, #Iwill and #TimesUp movements, current employment law and workplace norms over the past six months have not changed as a result of them.

What has changed is the sensitivity and awareness of the issue. This social context provides teachable moments that organizations should be utilizing to cure their workplace cultures of behaviours that foster sexual violence, discrimination or other disrespectful conduct; behaviours that undermine collaboration, teamwork, respect and equality – and thus productivity and positive morale.

The solutions for avoiding such unhealthy behaviours and related sexual harassment allegations, remain unaltered and relatively straightforward:



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Harvey Weinstein at the 2017 Tribeca Film Festival


Take care of the little things as they have a tremendous long-term impact on your workplace culture. As with most condoned misconduct, it escalates in number of occurrences and forms as the perpetrator often gets desensitized to the inappropriateness of the misconduct and/or emboldened by the fact that they have not been held accountable. Such condoning may also lead the perpetrator to engage in other unrelated prohibited misconduct (e.g., unethical ones).

Educate your leaders and decision-makers on what the law is, what your internal complaint processes are and what your organization’s obligations are under each. Do not implement a two-tier set of expectations in which high-performing or executive employees are able to get away with more workplace misconduct than others. Not every occurrence will require an extensive investigation. Not every allegation will be made in good faith. Not every allegation will reasonably fall within the definition of workplace misconduct. Educate leaders on the need for due process in every case – towards all parties. Allegations are just allegations until investigated and employment ought not to be summarily terminated simply because it is easier to do so than investigate. Employees will be watching to see how employers respond and it will impact your ability to attract and retain your employees.

Educate your employees. Be clear and consistent on what your expectations are and what behaviour will not be tolerated. Implement and train employees on your organization’s codes of conduct, anti-harassment and anti-discrimination policies. It is never enough to implement policies or merely comply with statutory obligations. Consistently apply your policies and embrace their purposes. Include training for all workplace parties on what is and isn’t sexual harassment and what is and isn’t consent.

Enlist witnesses to report and/or handle first instance incidents of disrespectful or discriminatory conduct by permitting your employees to feel safe about reporting misconduct and openly encouraging them to speak up when they notice a problem. Doing so reduces the stigma associated with filing a complaint and takes the onus of filing off of the targeted persons.

Sheryl L. Johnson is a partner in the employment and labour law practice at Fogler, Rubinoff LLP.



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