DON’T EVEN THINK ABOUT IT
The repercussions for sexual harassment are growing, writes Howard Levitt.
The recent news of ingrained sexual harassment at Fox and Uber, the high-profile lawsuit against Jian Gomeshi, and complaints about the treatment of women in the military have brought the issue to the forefront of Canadian consciousness. But it wasn’t that long ago that many Canadians met partners not on the Internet, but at work. Interoffice affairs were common, but often disruptive when they failed.
I recommend that my clients prohibit any dating between superiors and subordinates. Even if it is initially consensual, when the relationship ends, the subordinate might claim sexual harassment. That alone is sufficient reason for such a policy. I have known rejected parties to make such claims in bad faith, and the verity of the allegation can be difficult to establish. The problem is best avoided by prohibiting it in the first instance.
Sexual relationships cloud judgment and result in both parties making decisions based on matters other than pure business efficacy. Even if there are no ultimate consequences, the subordinate’s peers can be demotivated, believing there will be favouritism and a reduction of their own prospects.
I also recommend policies requiring employees not in direct-report relationships to disclose them. Only then can the employer ensure that no potential favour can be dispensed, consideration can be given to their not working together and the risk of allegations minimized. Failure to comply with either policy should be disciplinary.
Increasingly, Canadian human rights tribunals are showing little tolerance for anything that smacks of sexual overtures from superiors or retaliation for rejecting an advance. Damages for sexual harassment are increasing, as is social censure.
The law technically is that sexual harassment is an overture (which includes creating a sexualized environment) that the harasser knew or ought to have known was unwelcome. “Ought to have known” is becoming more generously defined.
In one case, Christine Horner, the financial controller at Peelle Co., developed a friendship with its owner, Hank Peelle, involving various common interests. Peelle’s marriage deteriorated and, as he became enamoured, he began increasingly inviting Horner to meetings and events. Convinced that the interest was mutual, one day he told her she looked pretty and asked if he could kiss her. Shocked, she told him they did not have that kind of relationship, reminded him of her own long-term relationship and commented that he was married. He confessed that his marriage was essentially over.
Peelle immediately apologized, sent her a harassment complaint form and provided her options to consider, including having the incident investigated, and establishing a method to monitor his behaviour and establish a formal warning with the ability to lodge additional complaints. Quite responsible one would think.
Horner’s response was that none of that was necessary as she was sure their former relationship could resume. It did not. Peelle stopped inviting her to the many personal activities they had shared, communicating more by email and only about business.
When Horner complained that things had not returned to what they had been, Peelle promised to “alter his behaviour to be more aligned with how things had been in the past.” Their previous relationship did not resume; he asked her to stop communicating with him as though they were personal friends, and she ultimately resigned.
Peelle argued at the tribunal that he had believed his feelings were reciprocated and that she would welcome the kiss. The tribunal found that, given that she was in a long-standing relationship and was unaware he had separated, Peelle’s belief was unreasonable. Horner was awarded damages for the request for the kiss and greater damages for injury to her dignity resulting from Peelle’s change in behaviour following her rejection of his advance. She also recovered her income loss of over $50,000.
Many might think that Peele’s restricting their relationship to business was precisely what he should have done. But that would be wrong. The tribunal noted that the decrease in access to Peelle in face-to-face supervision and consultation on business matters was retaliatory since his participation as the owner added business value to Horner’s work and enhanced her industry knowledge. Even though he attempted, after her complaint, to increase those business interactions, their nature and quality were not as comfortable or effortless as they had been.
But doing otherwise would also have carried risk.
This case accentuates the need for employers to absolutely prohibit superior-subordinate workplace relationships.
A recent decision shows the range of remedies human rights tribunals are now enacting. A co-owner of the Houston Avenue Bar and Grill in Barrie, Ont., Rajneesh Dutta, became very drunk one evening and sexually harassed an employee, De Anna Granes. The police were called but laid no charges, so the bar decided it did not need to conduct its own investigation. But such investigations are required when there are sexual harassment allegations.
In addition to awarding her $20,000 for injury to her dignity, as well as lost wages until she was re-employed, the tribunal made a series of increasingly common public interest remedies. It ordered Dutta to complete human rights online training, required the restaurant to adopt a written policy dealing with complaints of harassment and discrimination, and to develop a complaints procedure, to provide six months’ mandatory training of its employees, and ordered that it post Human Rights Commission policies in the workplace.
What are employers to do to avoid charges in the first place?
In addition to the policies articulated above, employees should be provided with regular training as to what constitutes harassment, appropriate staff should be trained to conduct quality investigations and ensure there is a delineated complaint procedure that is well publicized and ensures there are neutral channels for complaints without reprisals. All employees should be required to sign off on these policies annually.