Fighting workplace harassment should include big penalties

The year 2020 represented, largely through social media, a resurgence of the #MeToo movement. The #MeToo started as a social movement focused on exposing sexual abuse, generally by powerful people. It has since inspired similar movements focused on social justice, harassment and racial and gender inequality, often in response to a lack of legal recourse, and to fighting back against powerful institutions or people of considerable influence.

Whether allegations surrounding workplace harassment are anonymous online or promoted by social and conventional media outlets with the promise of keeping identities anonymous, #MeToo-type complaints remain alive and well.

In some cases, allegations are posted online where they gain traction through shares and retweets. They result in an almost immediate denial from the accused (the recent case involving two anonymous people on Twitter accusing pop singer Justin Bieber allegedly of raping them which he has denied, is a good example), followed by a rapid voting (of sorts) from the online community. In other cases, we have media outlets exposing harassment and abuse by key executives, because employees have nowhere else to turn to during the most traumatic period of their lives.

In either case, once the allegations break, the community is torn between supporting alleged victims, and, in some cases, a desire to believe the accused. The allegations are almost impossible to vet, but strongly influence public opinion. When looking at the recent resignation of Gov. Gen. Julie Payette, it was the public that weighed in most substantially before the federal government even had a chance to respond. Canadian employers, even in the midst of the coronavirus pandemic, have seen an increase in workplace harassment or gender and race-based allegations. The new surge is linked to the significant rise in social justice activism over the past two years.

The call out against these injustices has turned viral, with employers attempting to defend themselves online about why their executive and board level remain largely white and male. Companies are having their hiring and board appointment practices scrutinized like never before in history.

Despite the fact that the complaints sometimes lack details, a no-response leads to the perception that the accusers are being delegitimized.

As an employment lawyer, it is difficult to defend your client against a complaint you know little about, but recommending your client stay silent is foolish, even negligent. I had a case not too long ago, in which a medical professional took a very public position on the provincial government's poor decisions around lockdown rules. He stated that his employer's attempt to stifle him was abusive, part of a larger harassment campaign to push him out of a job, and to muzzle his right to free speech.

When consulted by the employer, I told them that saying nothing would simply lead onlookers to believe that they were committing the very acts alleged. So they stated instead, that the views he complained of were not in line with those of the company — and that's why they asked him to remove his tweets. In short, we often tell our clients that not taking action regarding legitimate complaints lends credence to illegitimate ones.

We continue to be inundated by stories of workplace abuse, with the perception that there is no systemic response to the outpouring of these experiences. Accusers are often frightened to come forward for fear of reprisal, be it a demotion, discipline, or termination, and more comfortable sharing their experiences anonymously with potentially millions of strangers. The forced resignation of Payette will compel both the government and workplaces generally to become more accountable as one thing has become clear — little has changed. And the public sector is not immune. An independent report concluded that Payette presided over a toxic workplace where Rideau Hall staff were yelled at, belittled and publicly humiliated. But the fear of reprisal was so powerful that even those that no longer worked at that office were too timorous to speak publicly of the abuses that they witnessed or were subjected to.

They opted for anonymity in leaking their complaints to the media. While the federal government has purportedly been at the forefront of change in 2018 with legislative changes and an allotment of funding of tens of millions of dollars to combat workplace harassment, it did little to protect its own employees.

While the allegations were scathing, the continuing chatter around Payette by media outlets, social media and public commentary has the government scrambling to cobble together a defence — with little success to date. The government will have to work rapidly, again, to convince the public that harassment will not be tolerated, that it has an effective and accessible complaints procedure, that adequate and fulsome internal investigations will take place, and that those coming forward with complaints will not be fired.

Hopefully, 2021 will see the onset of a legitimate and sustainable type of structural reform leading to a substantive reduction of harassment in Canadian workplaces. That reform should include hefty penalties for employers that ignore complaints. It can start with Rideau Hall.