From Winter of Discontent to Spring of Equality?

By Graeme McFarlane

As we moved through the last few months of 2017, we heard repeated allegations of sexual harassment brought against many high profile public figures. While many of these charges remain just allegations, the underlying factual scenarios follow a disturbing pattern.

Of Power and Prevalence
The vast majority of these allegations are being brought by employees who were extremely vulnerable to the powerful people in positions above them. Time after time news reports suggest that the victims tolerated the inappropriate actions of their “bosses” because they felt that resistance would destroy their careers.

There is no place in the modern workplace for employees to be subject to sexual harassment by their superiors. A recent Canadian survey, by Abacus Surveys (November 2017), indicates that 53 per cent of women report having experienced sexual harassment in the workplace: Abacus Surveys, November 1, 2017. In the same survey, 77 per cent of the respondents said that harassers face no consequences. In the face of these feelings and findings, there is movement at both the governmental and societal levels in response.

Federal Proposal to Address Harassment
The federal government has announced sweeping changes aimed at addressing the problem of all forms of harassment at the workplace. Bill C-65’s stated purpose is to collapse the various “patchwork” of legislation and policies in the federal sphere. In its press release the government said:

“The proposed approach will contribute to eliminating harassment and violence from federal workplaces by:

  • covering the full range of unacceptable behaviours ranging from teasing and bullying, to sexual harassment and physical and sexual violence;
  • requiring employers to take concrete action to prevent and protect against harassment and violence in the workplace and effectively respond to incidents when they do occur;
  • requiring that measures be put in place to protect the privacy of employees who report occurrences of harassment and violence in order to encourage potential victims to come forward;
  • providing employees with the choice of informal resolution processes or neutral, third-party investigations; and
  • protecting employees from retaliation and providing support to them when incidents occur.”

While there has been some criticism about the proposed federal regime in certain quarters focused on the potential cost of the investigations section, the overall objectives have been positively received.

Bullying and Harassment in B.C.
A few years ago, British Columbia introduced changes to the Workers’ Compensation Act to address workplace bullying and harassment. The legislation defines harassment as “any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably should have known would cause that worker to be humiliated or intimidated.” Examples of such conduct would include things like unwanted sexual advances, name calling, spreading rumours, vandalizing personal belongings and cyber bullying.

Prior to this legislative change, victims were faced with a difficult path to obtain relief from their situation. While harassment claims based on a prohibited ground (e.g. sex, religion, place of origin) may still be brought through the Human Rights process, the Workers’ Compensation regime has provided a framework that allows for both the support of the victim and a mechanism to require employers to take concrete steps to make their workplaces harassment free.

Putting Policy to Work
WorkSafeBC has indicated that all employers must do a number of things to reduce harassment. All employers must have bullying and harassment policies in place. These policies should include provisions setting out a broad theme stating that bullying and harassment will not be tolerated. The policy must also set out a reporting procedure with clear definitions as to how the information will be handled. An investigation process must also be included.

Lastly, the policies should make it clear that formal harassment findings will result in employment consequences for the perpetrator. Combined with the implementation of the policies, employers should have regular training practices put in place to ensure that all employees are aware with how the organization views harassment and bullying.

A Vigilant Eye at all Times
While structure is important, in today’s climate, employers should be particularly sensitive to harassment in the workplace. Organizations should be vigilant in seeking out and recognizing the signs that harassment may be occurring. Those warning signs include:

  • an increase in turnover or consistently high turnover in a particular department;
  • an increase in absenteeism or sick days by the target individual or group;
  • reduced productivity in the target individual or group; and
  • internal complaints and/or external complaints (e.g. to the B.C. Human Rights Tribunal).

If these warning signs are present, the organization should consider starting an investigation even if no complaint has been filed. If a company is proactive in dealing with harassment, it will likely avoid the negative consequences that have befallen many high profile organizations in the recent past. More importantly, by ridding the workplace of harassment we improve the quality of life for all of us.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Winter 2017)

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