#Metoo #Himtoo #Youtoo – Sexual Harassment and Violence at Work
In the wake of sexual harassment allegations against movie mogul Harvey Weinstein, the viral social media campaign #metoo has emerged as a way for millions of people to denounce sexual assault and harassment. Although it is an important campaign, I have been late to add my voice to the #metoo discussion because of the disproportionate focus on the stories women have shared. Many seem to suggest that there is an obligation on women to share their experiences in order to make change. But recounting these events over and over again can re-traumatize someone who has been through harassment and assault. What’s more, the majority of women are not surprised by the #metoo stories – as upsetting as they are. Women have been sharing experiences and naming men for years privately, and even publicly. But, what needs to happen for there to be a positive culture shift?
Here are my suggestions for how to reduce sexual harassment and violence in the workplace – a place where much sexual harassment still occurs:
- Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.
- Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Human Rights Code (“Code”). Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.
- Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.
- Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.
- Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.
- Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.
- Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.
- As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where there are not sexual or gender-based, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Code for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing.
If you would like to discuss these suggestions, please contact me at [email protected] or 647-633-9894.
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
Doug’s Top 5 Employment Law Stories of 2022
Here are my top 5 employment law stories for 2022: 1. COVID 19 - Temporary Layoffs This issue remains my number one story because this issue impacts so many court cases. Some judges have concluded that a temporary layoff set out in the Infectious Disease Emergency...
Reducing Litigation Risk
In a recent case, Pohl v. Hudson’s Bay Company, 2022 ONSC 5230 (CanLII),an employer was ordered to pay a long service employee the equivalent of about 3 years pay and contribute about $ 35 000 to his legal fees. Although this was a without cause termination case, it...
Employment Law Update: Electronic Monitoring Policy
A new amendment to the Employment Standards Act requires employers with 25 or more employees on January 1st of a given year to put in place a written policy regarding any electronic monitoring processes they use to monitor employees. The deadline for 2022 is October...