Why #MeToo Needs To Be A Serious Wake-Up Call To Employers
In the wake of the latest revelations of sexual abuse out of Hollywood, social media has been flooded with men and women revealing their history with sexual abuse and harassment with a simple hashtag: #metoo.
Confessing a history of abuse is an act of bravery, and as many posts have clarified, just because an individual does not share in the posting does not mean they have not experienced similar mistreatment.
Other individuals have been open in sharing their stories publicly, and it should come as no surprise that a large number of these incidents occurred in the workplace. Whether it was from a leering co-worker, a supervisor who pushed boundaries, or a boss making inappropriate comments (or far more egregious), the stories are countless.
While disconcerting in their own right, these stories also need to serve as a wake-up call for employers. In September, 2016, Ontario's Occupational Health and Safety Act was amended to include "workplace sexual harassment" in the definition of workplace harassment, and to hold employers responsible for resolving these issues.
As of September 8, 2016, OHSA's definition of 'workplace harassment' was expanded to include 'workplace sexual harassment,' which is defined as follows:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; (“harcèlement sexuel au travail”)
While workplace sexual harassment may instantly conjure up the image of a physical act, it can also include comments, jokes, gestures, or other such conduct which is clearly unwelcome in the workplace.
However, the definition also states "A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment." In other words, not everything can instantly be considered harassment, especially if it is a reasonable action taken by management in order to run the business.
The provisions include strict guidelines for employers in terms of how they must deal with incidents of harassment. Employers are required to work with the company's health and safety representative or committee (depending on the number of employees) to develop an 'action plan' of sorts that includes reporting measures for how incidents will be reported, a procedure for how incidents will be investigated and dealt with, a system for keeping sensitive information confidential unless otherwise required, a strategy for notifying parties of the results of the investigation, and any other prescribed elements.
Employers are responsible for ensuring that thorough investigations take place, and that the parties are informed in writing of the results and any resulting disciplinary measures or other actions that will take place. While these investigations can be done internally, there are highly skilled third-party investigators that specialize in dealing with these sensitive issues in a thorough and professional manner. If the matter goes to a Ministry inspector, the inspector can order an investigation by a qualified, impartial third party investigator to take place at the employer's expense.
So, what does this mean for both employers and employees?
For employers, it is imperative that any incidents of sexual harassment in the workplace be given a thorough and fair investigation. Employers can be penalized severely at courts and tribunals for letting reports or incidents of sexual harassment fall through the cracks without a proper investigation or any resolution. Employers are responsible in Ontario for keeping their employees safe at work, and this includes a workplace free from both harassment and discrimination based on sex, gender, sexual identity or sexual orientation.
For employees, there are strict legal protections in Ontario to prevent these sorts of incidents, but sadly that does not mean that they do not occur on a regular basis. While speaking up about these incidents is incredibly difficult, know that you are protected at law both from said behaviours, and from being punished for reporting any incidents.
While employers can conduct investigations internally if the proper tools are in place, it may be a best practice to bring in an impartial, third-party investigator with expertise in this field. While the added expense may feel unnecessary, a thorough investigation can be instrumental in getting to the bottom of a problem, and solving any systemic issues before problems re-occur.
If employees have experienced sexual harassment on the job and your employer is unwilling to address the issue, there are resources available for taking action. An employment lawyer for example can help you understand potential courses of action, and assess the best way to resolve the issue while protecting your interests.
The bottom line is that sexual harassment is NEVER okay, especially at work, and yet it's more prominent than most of us would even fathom. For employers who see their employees posting "#metoo" on their social media, know that it may have happened on your watch without you knowing it, and the time to take action is now.