Sexual harassment probes often biased

Workplace sexual harassment continues to spark national conversations with a long list of accused men, including key political figures, those in news and media and now the Canadian military.

Allegations from multiple women accusing top ranking military officials of sexual assault, harassment and “inappropriate behaviour” went before a Women’s Committee in the House of Commons last week.

Women working with the Canadian Armed Forces recounted story after story of rape, sexual harassment, unwelcome touching and sexualized behaviour in the workplace. When they complained they were met with shoddy investigations that resulted in reprisals and ostracization. They claim these experiences will have lifelong impacts on their health.

One air force technician claimed to have experienced a “lifetime worth of sexual assault and misconduct” since she joined the military in July 2018.

The federal government has both apologized — through Deputy Prime Minister Chrystia Freeland — and maintained they knew nothing of the allegations until they recently were made public. Others claim the federal government was aware of them since 2018, and Freeland, and the prime minister especially, have a pattern of replacing action with disingenuous apologies.

The coverage prompted us to evaluate the types of harassment complaints we have received from clients in the last 18 months, to see whether the experiences of women in the military is any different than in other Canadian workplaces.

In acting for employers, we have also seen clear examples of employees extorting companies for severance and trying to “take down” innocent senior executives. The investigation involved in ascertaining who was actually harassed versus monetarily motivated is taxing. There are many false allegations muddled and intertwined with genuine ones, and it’s a trap to fall into assuming the employee or employer, man or woman is always to be believed.

Since there is no public database recording Canadian sexual harassment complaints, the public is left with little more than anecdotes.

Here are some recent examples from my practice:

❚ A woman on a male-dominated board complained of sexualized comments made by her fellow male board members. They laughed in telling her that they had no intention of honouring any rules in staying six-feet away from her when in-person meetings resumed. When she complained to the chairman, he told her, that it was just “boys being boys”;

❚ Another woman complained that the company CEO told her that he liked how all of her tops squeezed her breasts together, giving her “classy” cleavage. She was a senior executive of that company. She never came forward after the CEO reminded her that HR “reported” to him;

❚ A young woman working with a mental health facility was sexually assaulted on multiple occasions by a supervisor who had numerous complaints of the same nature in the 10 years leading up to her complaint. When she did take the issue to HR, the focus of the investigation was the Facebook photos she chose to send him;

❚ A young woman working for a restaurant chain was raped by her manager who she had worked with for years. When she raised the issue, HR told her to take it to the police and washed their hands of it, stating that they did not have jurisdiction over criminal matters. She quit.

None of these allegations have been proven in court. As with any other trial, these women will be tested on their evidence and their credibility.

Employers are obliged to conduct at least a basic investigation and to ensure those coming forward are protected from reprisal. This does not change the fact that sexual harassment complainants continue to worry about being ostracized, maligned or fired.

Where investigations are conducted, often they are botched, biased or so flawed that they cause additional trauma for the employee involved. Traditional investigation firms hired and paid by employers are economically incented to be rehired or referred to to other employers. Therefore, some employees trust them less than other investigators. That is why we always recommend, when hiring external investigators, using retired judges with the credibility and objectivity to avoid that trap.

The risk of costly consequences, both financially and reputationally, has failed to incentivize employers to deliver messaging of zero tolerance of harassment. As a starting point, employers should do the following:

❚ Work with an employment lawyer to draft a comprehensive anti-sexual harassment policy that sets out the company’s expectations. This policy should clearly set out how complaints will be dealt with and investigated. Distribute the policy to each employee, and ensure it is included in any onboarding package for new hires.

❚ Ensure that you put in place harassment training for all employees, with a specific emphasis on those in leadership positions.

❚ When faced with a harassment complaint, respond promptly so the employee understands it is being taken seriously. Commence an investigation immediately and ensure your HR team has been adequately trained on how to conduct them. For most situations, internal investigations are adequate.

A completed investigation should culminate with a report, where the readers can ascertain a review of the process that the employer undertook.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Muneeza Sheikh is a lawyer with LSCS Law.