It was reported that Fox News recently paid $90 million USD to settle shareholder claims for damages resulting from sexual harassment settlements. Harvey Weinstein’s empire is crumbling under the allegations of sexual harassment and assault. Charlie Rose has left his profession in disgrace. The liberal Democrat Al Franken has tendered his resignation. Christopher Plummer may win an Oscar stepping in for disgraced Kevin Spacey. Serious allegations against the controversial conservative Roy Moore caused many senior Republicans to say the women complainants are credible and that Moore should not run for the US Senate. Moore’s loss in Alabama, the reddest of red states, reflects the change in attitude in America on the issue of sexual harassment and assault. But contrast that with the actions of President Trump and the Republican National Committee in defending and supporting Roy Moore — despite apparently credible claims of sexual harassment — urging voters in Alabama to vote for him. Time magazine named Silence Breakers — women who complained about sexual harassment — “Persons of the Year”. These are indeed remarkable times.
One joke circulating these days sadly says it all:
All the members of the company’s Board of Directors were called into the Chairman’s office, one after another, until only Ted, the junior member, was left sitting outside.
Finally it was his turn to be summoned.
Ted entered the office to find the Chairman and the other four directors seated at the far end of the boardroom table.
Ted was instructed to stand at the other end of the table, which he did.
The Chairman looked Ted squarely in the eye, and with a stern voice, he asked:
“Have you ever had sex with my secretary, Miss Floyd?”
“Oh, no, sir, positively not…!” Ted replied.
“Are you absolutely sure….?” asked the chairman.
“Honest, I’ve never been close enough to even touch her….!”
“You’d swear to that….?”
“Yes, I swear I’ve never had sex with Miss Floyd, anytime, anywhere…” insisted Ted.
“Good. Then YOU fire her.”
One of the problems in dealing with complex issues such as sexual assault and sexual harassment by way of tweets and 60-second news clips is that many allegations of sexual harassment might not, in fact or law, be sexual harassment. Not all inappropriate conduct is sexual harassment. And of course allegations of sexual assault require proof beyond a reasonable doubt with the presumption of innocence. Issues such as consensual relationships and the nature and frequency of the misconduct need to be analyzed on a case by case basis. The problem is that the “sting of the allegation” in and of itself is so significant that the impact of the complaint itself may be devastating and the details of the complaints or defenses are often overlooked.
With the public spotlight shining brightly on allegations of sexual harassment involving prominent businessmen, politicians, and sports, media and television celebrities, a report recently issued by the federal Liberal government and new legislation was timely to say the least.
The federal government engaged in a year-long consultation process with a number of stakeholders on the issue of harassment in the workplace. They also included an online survey. It issued its Report “Harassment and Sexual Violence in the Workplace Public Consultations: What We Heard” outlining the public consultation process. Under the heading “Next Steps” the government stated “We listened carefully and are using the information that was shared with us to take meaningful action to counter these profoundly damaging behaviours.”
The federal government has also introduced a bill in the House of Commons that would address concerns about harassment and sexual harassment in the workplace. Bill 65 An Act to Amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 was introduced in November 2017. It will address harassment, bullying and sexual harassment in two ways.
First the Act will make employers responsible for ensuring that employees are not subjected to “accidents and physical or psychological injuries and illnesses”. The inclusion of “psychological injuries and illnesses arising out of, linked with or occurring in the course of employment” represents a significant expansion of these protections for employees.
Secondly the Act will require employers to create new policies to prohibit inappropriate behaviour and harassment that could cause psychological harms. Federally regulated employers must investigate complaints of harassment and take steps to address those incidents. The Act will require that employers create confidential complaint processes to respond to harassment and provide affected employees who complain with support. If an employee is not satisfied with the employer’s response he/she has the right to ask the Minister to investigate and the Minister must then investigate unless she is satisfied that the complaint was properly investigated, or it is “trivial, frivolous or vexatious”.
The Act applies only to federally regulated employers such as banks, broadcasters, interprovincial trucking companies, etc., but it will undoubtedly influence provincial lawmakers. All employers will benefit from reviewing the Act and the Report.
Here are the links to the Report and Bill 65:
Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca . Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law. Michael can be contacted at email@example.com . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at firstname.lastname@example.org or call her at 604 336 7427.
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