Transcript Document

SEXUAL HARASSMENT IN
THE WORKPLACE
Muneeza Sheikh
Sunira Chaudhri
Levitt & Grosman LLP
February 26, 2015
WHAT IS SEXUAL
HARASSMENT?
EXAMPLES OF SEXUAL HARASSMENT
•
Asking for sex in exchange for a benefit or favour
•
Repeatedly asking for dates, and not taking “no” for an answer
•
Making unnecessary physical contact, including unwanted touching such as
hugs
•
Using rude or insulting language or making unseemly comments towards
women (or men)
•
Making sexual jokes
•
Bragging about sexual prowess
EXAMPLES OF SEXUAL HARASSMENT
•
A disgruntled employee spreads rumours about his female director,
stating that she is only successful because she “slept her way to the
top”
•
An employer may be held liable for incidents that take place during
business trips, company parties or other company-related functions
•
In one case, a tribunal found that an employer sexually harassed an
employee when he made repeated comments about her physical
appearance such as, “Oh, don’t you look pretty today”, “Oh you
shouldn’t wear that dress, it doesn’t do much for you”, “Those nylons
don’t go with that skirt”, and “Let’s run off and get married . . .”
PREVENTING AND RESPONDING TO
SEXUAL HARASSMENT
•
Under the Occupational Health and Safety Amendment Act, also known
by the name “Bill 168”, employers with more than 5 employees have
several obligations:
• Preparing a policy about workplace violence and harassment
• Providing information, instruction, and supervision as required
• Developing and maintaining a program to implement its workplace violence
and harassment policy
PREVENTING AND RESPONDING TO
SEXUAL HARASSMENT
•
Effectively, an employer is required to put in place measures to minimize
the threat of sexual harassment, but cannot reasonably be expected to
prevent all harassment. As one arbitrator commented:
“it is not humanly possible to prevent all behaviour that amounts
to harassment, defamation or disrespectful behaviour towards
employees. There are very real limits to the power of an
employer to anticipate and control such behaviour . . . the law
does not make the employer responsible for all actions of its
employees that have a negative impact on other employees. . . .
an employer will not be held liable unless it has been negligent
or fails to act.”
PREVENTING AND RESPONDING TO SEXUAL
HARASSMENT
•
Employers have a legal duty to take steps to prevent and respond to sexual
harassment
•
When deciding if an employer has met its duty to respond to a human rights
claim, tribunals are likely to think about:
•
The procedures in place at the time to deal with discrimination and harassment
•
How quickly the organization responded to the complaint
•
How seriously the complaint was treated
•
Whether the organization provided a healthy environment for complainant
•
How well the complainant was informed about the action taken
EMPLOYER’S DUTY REGARDING
SEXUAL HARASSMENT
•
Employers have a responsibility to “deal with” complaints of harassment
•
The Employer’s management and investigation of a harassment complaint is one
of the most critical steps in ensuring that the prospect of future litigation is
minimized
•
How a complaint is investigated will affect how the anti-harassment policy of a
company is perceived by employees and the impact that the policy has on the
workplace
MCINTYRE V ROGERS CABLE TV LTD
•
The employee was dismissed after the employer investigated a sexual
harassment complaint and demanded a letter of apology from the employee
•
Inadequacies in the employer’s investigation:
•
Conducting only telephone interviews of important witnesses
•
Taking no witness or party statements in writing
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Maintaining a poor record of the investigation generally
•
Not questioning the credibility of the complainant
•
Deciding in advance of the meeting with the employee what the discipline
would be
DRAFTING AN ANTI-HARASSMENT POLICY
An anti-harassment policy should include:
1. A definition of sexual harassment that is substantially the same as that
found in applicable legislation, such as: the Human Rights Code, the
Canada Labour Code, the Occupational Health and Safety Act
2. A statement to the effect that every employee is entitled to a workplace free
of sexual harassment
3. A statement to the effect that the employer will make every reasonable effort
to ensure that no employee is subjected to sexual harassment
4. A statement to the effect that the employer will take disciplinary measures
against any person under its direction who subjects any employee to sexual
harassment
DRAFTING AN ANTI-HARASSMENT
POLICY, CONT’D
5.
A statement explaining how complaints of sexual harassment may be
brought to the attention of the employer
6.
A statement to the effect that the employer will not disclose the name
of the complainant or the circumstances related to the complaint to any
person unless disclosure is necessary for the purposes of
investigating the complaint, taking disciplinary measures, or is
required by law
7.
A statement informing employees of their right to make a complaint
under human rights and/or occupational health and safety legislation
(if applicable).
PIPSC and CEP, Local 3011 (Haniff), Re
Facts
•
•
The employee, a Mail Room Clerk, made sexual advances towards a
cleaning staff member, including:
•
grabbing her buttocks
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pressing himself against her in the elevator
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blowing kisses
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making sexual gestures
•
doing “sexy dances” for her
The conduct went on for five years
PIPSC and CEP, Local 3011 (Haniff), Re
At arbitration
•
The arbitrator found that although the clerk had sexually
harassed and assaulted employee, AFTER he was confronted he
stopped
•
The arbitrator also relied on evidence of a colleague that stated
the complainant was a “strong woman”
•
The arbitrator put the employee back to work
PIPSC and CEP, Local 3011 (Haniff), Re
On appeal to the Divisional Court:
•
The Court did not support the reinstatement
•
The Court found that the buttocks grabbing constituted sexual
assault and that all the other behaviour taken together (sexy dancing
included) constituted sexual harassment
•
The Court referred to the arbitrator’s considerations in reinstating the
clerk as completely irrelevant and stated that the award was a
“dangerous step backwards in the law surrounding the treatment of
sexual misconduct in the workplace”
DESIGNING AND IMPLEMENTING A SEXUAL
HARASSMENT POLICY
1. Written (and visible) Code of Conduct which outlines the types of behaviours
your organization deems unacceptable
2. Definition of “sexual harassment” and “hostile work environment” using easy
to understand terms and language
3. List examples of prohibited behaviour, but state that the list is not
comprehensive
4. Educate and train your employees in your complaint reporting process and
procedures
•
Specify to whom an employee must refer/file a complaint
DESIGNING AND IMPLEMENTING A
SEXUAL HARASSMENT POLICY, CONT’D
5. Educate and train your employees on your investigation process and procedures;
lay out the steps that should take place once a complaint is received, such as
documenting the complaint, interviewing people of interest
6. Decide if the accused employee should remain at work or be suspended during the
investigation
7. Include a section on confidentiality and privacy issues
•
Explain that the identity of the accused, the accuser and any witnesses
involved will be kept confidential and will be revealed on a need-to-know basis
9. Assure employees that there will be no punishment for filing a complaint or acting
as a witness
DESIGNING AND IMPLEMENTING A
SEXUAL HARASSMENT POLICY, CONT’D
10. Provide for disciplinary measures up to termination for employees who
violate the policy, file a false complaint, or complain in bad faith
11. Make sure all employees are made aware of the policy at all times and are
trained on the ins and out of the policy
•
Publish and communicate the policy
•
Have new and current employees sign and acknowledge that they have
been informed of and understand the policy as written
12. Make sure that the person accountable for sexual harassment complaints, as
well as supervisors and management, respond to a harassment complaint
immediately and effectively in order to enforce the policy
DESIGNING AND IMPLEMENTING A
SEXUAL HARASSMENT POLICY, CONT’D
13. Training and education on sexual harassment must be provided to
employees, supervisors and management
•
Education must include how to identify, handle and resolve
situations of harassment
14. Outline, for the HR team, how the harassed employee, the accused
employee, and all other witnesses should be approached, and how
interviews should be conducted and documented
15. Be consistent in enforcing company policy, and NEVER overlook
infractions
JD v Ultimate Cut Unisex
2014 decision of the Ontario Human Rights Tribunal
Facts
• Ultimate Cut Unisex was a small salon. One of the co-owners
routinely harassed female employees. His conduct included:
massaging, hugging, asking for dates, sexual banter, and
propositions.
• The other co-owner witnessed the conduct but ignored it.
• When employees complained, they were fired.
JD v Ultimate Cut Unisex
Result
• Despite being a small business, Ultimate Cut Unisex was ordered
to pay over $100,000 in moral damages to the three employees
• The financial liability of an employer who fails to prevent or
appropriately respond to sexual harassment in the workplace is
potentially very high
QUESTIONS?
C O N TAC T U S !
MUNEEZA SHEIKH, PARTNER
[email protected]
SUNIRA CHAUDHRI , PARTNER
[email protected]