Sexual Harassment

Since a prohibition against sexual harassment was added to the human rights codes of the federal government and most provinces in the early 1980s, the topic has never been far from the headlines. Witness the media firestorm that ensued late last year following revelations of a high-profile lawyer’s alleged misbehaviour at a gathering celebrating the merger of his New York-based legal group with a respected Toronto firm.

Despite the wild and woolly reputation that plagued engineering schools for decades, few cases as sensational have been spotlighted in this profession. Off the record, women working in consulting engineering say it’s more likely to be a problem for support employees, who may not feel as confident as professional staff in handling a situation themselves. That’s not to say such an explosive case isn’t lurking in the shadows, waiting to take an unwary firm by surprise.

The trick, advise human rights and sexual harassment experts, is to ensure you’re not taken by surprise. To protect itself from being hauled in front of a human rights tribunal, and to protect its female engineers, other staff, customers and suppliers from offensive behaviour (and yes, Demi Moore movies notwithstanding, most sexual harassment is targeted at women), even the smallest firm should address the basics of a good prevention program.

According to legal experts, those basics include:

Devising and communicating to all employees a sexual harassment policy

Providing some training and guidance on what constitutes harassing behaviour

Establishing a complaints investigation and resolution process.

The proof is in the policy

A sexual harassment policy needn’t be long or complex, advises Lynn Bevan, a Toronto lawyer specializing in employment law. The topic can be rolled into a policy covering human rights and workplace discrimination in general. However, sexual harassment should be highlighted in a discrete section.

Your policy should include a reference to the appropriate provisions in your province’s human rights legislation (e.g. in Ontario, see Section 7 of the Ontario Human Rights Code). It should explain that anyone acting in a management capacity has the responsibility to ensure harassment doesn’t happen and, if it does, that the person making the complaint knows what recourse he or she has (i.e. accessing the complaints resolution process). Your policy should also outline this process (see below) and potential disciplinary actions. “Up to and including termination” is the wording often used.

Some companies even go so far as ensuring that every employee is not only aware a policy exists but that each has signed a copy to signify he or she has read and understood it. Such a move may be going beyond the call of duty. However, should your firm have a complaint lodged against it, being able to show you’ve taken all reasonable steps to prevent harassment will help.

Training reduces confusion

Being able to prove — in court if necessary — that you’ve taken all reasonable action to prevent harassment is one reason why investing a little time and money in training is also a good idea, suggests Malcolm MacKillop, a lawyer with Borden & Eliot in Toronto. More importantly, because many people are confused about what kind of behaviour constitutes sexual harassment (“You mean I can’t even compliment someone on the way she looks anymore?”), a short, well designed training session can help clarify the issues.

A half-day course, led by an experienced facilitator, can also present an ideal opportunity to articulate your firm’s resolute stance on preventing sexual harassment and to introduce or clarify your policy and complaint resolution process. Open, sensitive discussion, again moderated by a seasoned facilitator, can prevent polarization between “camps” that may divide along lines of, “There’s no chance of that happening here,” and “No-one believes there’s a problem.”

Resolving complaints

Waiting until you have a sexual harassment complaint before you decide what you’re going to do about it can be fatal to your hopes of managing it fairly and expeditiously, Bevan points out. Waste too much time deciding how you’re going to handle the problem and memories of what actually happened can become confused. The rumour grapevine can take over. Or, the complainant may decide you’re going to do nothing at all and contact the nearest human rights commission office.

Most important is ensuring that an employee with a complaint knows who to go to to report the incident, has faith that the matter will be treated as fairly and confidentially as possible, and is assured that she or he has the right to see the issue resolved without “fear of retribution or prejudice” (OHRC, Section 7).

In many organizations, the employee’s immediate superior is the first person the complainant should go to, unless of course it’s that manager who is the problem. Then, it’s either the next level up or the human resources department.

If your firm isn’t big enough to employ a human resources professional, a senior person respected by a majority of employees should be appointed to lead the investigation process. This individual can advise the employee of her/his rights and responsibilities and conduct a preliminary interview with the alleged harasser.

If it appears that there are grounds to the complaint, even though the perpetrator may initially deny it, many organizations will obtain legal advice at this point. A big problem in successfully resolving sexual harassment complaints is that there is seldom much corroborating evidence (e.g. witnesses). An employment law specialist skilled in investigating such complaints will be able to advise management on how to proceed, how to protect the rights of both complainant and alleged violator, and how to conduct and document interviews and on other evidence gathering. There have been cases where employees accused of sexual harassment and who have been terminated as a result, have turned around and sued their former employers for wrongful dismissal.

In many cases, the complainant isn’t looking for consequences so dire: she or he just wants the problem acknowledged and the behaviour stopped. However, senior management people have to make clear that they, not the complainant, have the right to make the final decision on what will be appropriate disciplinary action. That is because ultimately it’s the firm, its principals, reputation and financial well-being that is at stake if a sexual harassment complaint isn’t dealt with fully, fairly and finally.CCE

Shelley Boyes is a Toronto-based writer specializing in human resources and human rights.