DAT­ING IN THE WORK­PLACE? IT’S SAFER TO JUST SAY NO

Get­ting too per­sonal with col­leagues is risky in #MeToo era, says Howard Le­vitt.

Regina Leader-Post - - FRONT PAGE -

Con­ser­va­tive Pa­trick Brown had the On­tario premier­ship in his grasp. He had worked his en­tire ca­reer to reach that pin­na­cle, even ab­stain­ing from al­co­hol to en­sure that he would never make the types of mis­takes which could de­tract from his goal. Sud­denly, a 10-year-old al­le­ga­tion arose, one that was quickly proven to be at least par­tially false. Notwith­stand­ing the lack of ev­i­dence, his ca­reer was ru­ined and he now can­not even run for a seat with his for­mer party.

His is only one high-pro­file ex­am­ple of an in­creas­ing phe­nom­e­non, a male ex­ec­u­tive whose as­cen­sion is pre­cip­i­tously de­railed by the zeit­geist of #MeToo.

I have had many ex­ec­u­tives visit my of­fice in re­cent months, con­cerned about some­times decades-old li­aisons, pan­icked that their ca­reers are about to be kneecapped. Should they ap­proach that ro­man­tic in­ter­est of yes­ter­year and try to re­solve mat­ters, at the risk of po­ten­tially awak­en­ing a slum­ber­ing com­plaint, or is it bet­ter to ven­ture on with crossed fin­gers and a tor­mented soul?

And how should they re­spond if a com­plaint is made? Un­less the em­ployer fires the ac­cused in­stantly to avoid dam­ag­ing its brand, the ac­cused must de­cide whether to quickly re­sign to pre-empt any in­ves­ti­ga­tion or to fight the charges, hop­ing to clear their name and sal­vage their job. In do­ing so, they should con­sider, even if there is no le­gal cause for their discharge, whether their con­duct, once dis­closed, will ef­fec­tively end their ca­reer and fu­ture em­ploy­a­bil­ity. It is far bet­ter to be pre-emp­tive.

With that in mind, here are some sug­ges­tions for con­duct in the #MeToo era:

1 Do not date in the work­place

A gen­er­a­tion ago most Cana­di­ans met their spouse at work. We no longer safely have that lib­erty. Legally, there is no sex­ual ha­rass­ment un­less the “ha­rasser” knows or should have known that their over­ture was un­wel­come. This gen­er­ally means that you never ask a co­worker out a sec­ond time if they do not ac­cept the first. But even an ini­tial re­quest for a date is fraught with risk if the re­cip­i­ent later al­leges that they were treated dif­fer­ently after re­ject­ing the re­quest. Su­pe­rior-sub­or­di­nate re­la­tion­ships should al­ways be for­bid­den as a mat­ter of pol­icy and dis­clo­sure of such a re­la­tion­ship should be required in or­der that, per cor­po­rate pol­icy, the em­ployer can trans­fer at least one of the in­volved par­ties so the su­pe­rior will not be in a po­si­tion to be­stow work­place favours on the sub­or­di­nate (and peers of the sub­or­di­nate will not al­lege favouritism). The poli­cies at Google and some other com­pa­nies per­mit co-work­ers to ask each other out once be­fore it will be con­sid­ered ha­rass­ment, with even a neb­u­lous re­sponse i.e. “per­haps an­other time” con­sid­ered a re­jec­tion. My ad­vice, sim­ply don’t do it, not even once.

2

En­sure that all work­place com­mu­ni­ca­tions are sex­u­ally an­ti­sep­tic

To state the ob­vi­ous, there can­not be a com­plaint if you say noth­ing that can be com­plained of. No dou­ble en­ten­dres, no dis­cus­sions of racy scenes from Game of Thrones and no per­sonal anec­dotes. It’s not just in­vi­ta­tions that con­sti­tute sex­ual ha­rass­ment. So do com­ments cre­at­ing a sex­u­al­ized at­mos­phere and thereby, in the minds of the re­cip­i­ents, a poisoned work en­vi­ron­ment.

3 Limit al­co­hol at work­place so­cial events

Al­most half of the sex­ual ha­rass­ment sit­u­a­tions I have dealt with have arisen at work­place so­cial func­tions. Al­co­hol not only pro­vides false con­fi­dence and dis­torts your so­cial per­cep­tion but can ex­ag­ger­ate your over­ture in the per­cep­tion of the re­cip­i­ent. For that rea­son, you should be par­tic­u­larly cir­cum­spect so­cially when al­co­hol is in­volved.

4 Avoid com­ments on co-work­ers’ phys­i­cal char­ac­ter­is­tics

What your spouse might view as a com­pli­ment, a co-worker might con­sider sex­ual ha­rass­ment, par­tic­u­larly if it is re­peated.

5

As­sume that com­ments of a sex­ual na­ture will ul­ti­mately be viewed as un­wel­come

Just three months ago, NFL Hall of Famer Mar­shall Faulk and other on-air ta­lent were sus­pended by the NFL Net­work after Jamie Can­tor ac­cused them of sex­u­ally ha­rass­ing and as­sault­ing her. Al­though the con­duct had pur­port­edly gone on for some time, the al­le­ga­tions arose when she sued the net­work in re­sponse to be­ing fired from her job as a wardrobe stylist after be­ing ac­cused of steal­ing clothes. The net­work’s de­fence was that she had con­sented to the con­duct along the way. I have seen many in­stances of ha­rass­ment al­le­ga­tions aris­ing after pre­vi­ously con­sen­sual re­la­tion­ships end.

There are two points of note. First, a bad end­ing can in­flu­ence one’s per­cep­tion of pre­vi­ous con­duct. Sec­ond, pre­vi­ous con­sent does not de­note fu­ture con­sent.

6 Avoid so­cial me­dia con­nec­tions with co-work­ers

Sub­or­di­nates may feel they have no choice but to ac­cept your Face­book “friend” re­quests. But what flows from that might in­clude you “lik­ing” va­ca­tion pic­tures show­ing co-work­ers at the beach, which they may in­ter­pret as in­tru­sive. This co­in­cides with the sec­ond point above, that all in­ter­ac­tions in­volv­ing co-work­ers should be sex­u­ally an­ti­sep­tic.

7 Limit the di­vulging of per­sonal in­for­ma­tion

You may think you are be­com­ing friends when the work­place re­cip­i­ent of your nar­ra­tives is merely be­ing po­lite. Ul­ti­mately, there is the risk of the re­cip­i­ent con­sid­er­ing your per­sonal sto­ries and com­ments in­tru­sive. As well, your be­lief that you have be­come friends makes it eas­ier to veer into dis­cussing your ro­man­tic and per­sonal life, which can be deemed sex­ual ha­rass­ment.

8 At­tend func­tions in groups

Ac­cord­ing to a Sur­vey Mon­key study in the U.S., a large ma­jor­ity of male man­agers are now re­luc­tant to have so­cial en­gage­ments and busi­ness trips with fe­male sub­or­di­nates for fear of pos­si­ble false al­le­ga­tions of sex­ual ha­rass­ment later. Ju­nior fe­male em­ploy­ees will be de­prived of the vo­ca­tional op­por­tu­ni­ties of at­tend­ing events, meet­ing clients and be­ing men­tored. While I can­not per­suade em­ploy­ees that this fear is al­most al­ways mis­guided, I can sug­gest that the risk will be en­tirely avoided if you in­vite more than one per­son to the meet­ings in ques­tion. 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 | Twit­ter.com/ HowardLe­vit­tLaw

SPENCER PLATT/GETTY IM­AGES

Some com­pa­nies like Google have poli­cies per­mit­ting co-work­ers to ask each other out once be­fore it will be con­sid­ered ha­rass­ment, with even a vague re­sponse that could be con­sid­ered a re­jec­tion. Howard Le­vitt’s ad­vice: Sim­ply don’t do it, not even once.

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