sexual harassment in the workplace muneeza sheikh sunira chaudhri levitt & grosman llp february...

SEXUAL HARASSMENT IN THE WORKPLACE

Muneeza Sheikh

Sunira Chaudhri

Levitt & Grosman LLP

February 26, 2015

WHAT IS 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 . . .”

EXAMPLES OF SEXUAL HARASSMENT

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

• 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.”



• 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

• 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

• pressing himself against her in the elevator

• blowing kisses

• making sexual gestures

• doing “sexy dances” for her

• The conduct went on for five years

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


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


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


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 TA C T U S !

M U N E E Z A S H E I K H , PA RT N E R M S H E I K H @ L E V I T T G R O S M A N . C O M

S U N I R A C H AU D H R I , PA RT N E R S C H AU D H R I @ L E V I T T G R O S M A N . C OM

sexual harassment in the workplace muneeza sheikh sunira chaudhri levitt & grosman llp february...

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