Sexual harassment today: Fire alleged offenders first, ask questions later

Being a company free of scandals is now a branding exercise, Howard Levitt says.

Up until even one month ago, Canadian employees were seldom fired for cause based on a first offence of sexual harassment. When they were, it was usually because that harassment had reached almost criminal proportions, i.e. it was physical in nature. Even then, more often than not, termination would follow an extensive investigation with the employee sent home while various “witnesses” were interviewed.

Today, a complaint of almost any type of sexual harassment results in summary dismissal without even the pretence of an investigation.

The workplace landscape has changed. Being a company free of harassment is now a branding exercise as much as a legal one. Employers do not want to be associated with employees accused of sexual harassment. They will fire them quickly and take whatever consequences might arise.

Although due process has ceased to exist for employees accused of sexual harassment, employers will likely be immune to consequence. Few employees will be foolish enough to sue. Even if the harassment in question was insufficient to have been cause for discharge, a court’s finding that there was any harassment — legal cause or not — is career death for any Canadian executive.

Given that the allegations are inherently salacious, particularly if the employee has any profile, it would be personally reckless, for the sake of a severance award, to go to court and risk days of media coverage of particular predations.

Add to that, public judgment. All will be Googled by any prospective employer. Few employers today hire without checking what is revealed in social media.

The limitation period for a victim of harassment, whether in court or before the Human Rights Tribunal, ranges from one to two years in most Canadian jurisdictions.

But the age of the offence is no respite for an employee accused.

If even an age-old predation is complained of — even if the person making the accusation has long left that workplace, but if the employee complained of is still there — an employer must take action and, at least, investigate the allegation’s verity.

The reason is that, if an employer knows about a previous instance of sexual harassment and takes no action, and the perpetrator later harasses another employee, the employer will be liable in negligence for not having taken proactive measures when informed of the earlier conduct.

Our firm has had clients approach us who have committed acts of harassment in the past, who are concerned that a complaint will be brought up now. Should they approach the person they harassed years earlier, provide an apology and/ or attempt to settle the matter now? What, they ask, constitutes their best strategy?

Although every case is different, I have generally advised against that. At best, coming forward now in this climate would appear disingenuous to their victim. At worst, it would reaffirm their victim’s view, concretize any ambiguity and reawaken upset that might have long been put to rest. Of course, such advice has to take into account the vagaries of individual psychology.

I have also had calls from individuals who are the victims of age-old predations, wondering as to their recourse. If they are looking for money, I tell them, the limitation period in Ontario is two years.

If that is not their motive, my advice has been that the time to make the complaint is now. As Jerry Agar of Newstalk 1010 pointed out, sexual harassment allegations will shortly receive less attention than now. Why? Because the news cycle is short and media attention invariably moves on to the next big issue.

Most of my calls have been from employers, apprehensive of the unknown. They are worried about harassment that might have occurred, unbeknownst to them, by any of their managers at any point in the past. They wonder what they should do if and when a complaint is made.

Employers, faced with aged allegations, are in a difficult position, as any judge or arbitrator will tell you. By the time the case gets to court, it is difficult to have genuinely reliable evidence as to what occurred even as recently as two or three years ago.

The legal profession tends to base its decisions and determine credibility based upon whatever objective evidence exists. Such objective evidence, as to what occurred 10 or more years ago, is scant and such cases are almost impossible to reliably determine. As well, as any memory psychologist would tell you, people’s memory of events are influenced more by that event’s recounting than by their actual recollection of the event itself.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt. hlevitt@levittllp.com