Venus Versus Mars

Creating a respectful work environment has never been trickier as the momentum created by the #MeToo movement continues to rock workplace gender dynamics and threatens to put a dent on organizational cohesion – even widen the gender gap.

hanging mindsets and questionable conduct that have been normalized in some workplaces cannot be achieved overnight, especially in gender-skewed sectors where sidelong glances, risqué jokes and pillow talk were all in a day’s work.

While culture change that can give inequitable gender relationships in occupational settings a corrective tilt is a good thing, there are concerns that righting harassment wrongs has acquired a crusade-like tone and intensified the tension in workplace-gender dynamics. More concerning is the insidious potential for it to be misused to discredit a rival or get back at an overbearing boss.

For employment lawyer and mediator Stuart Rudner with Rudner Law in Markham, Ontario, the 180-degree turn in our attitude towards sexual-harassment claims — from doubting alleged victims to the other extreme of taking complaints at face value without proof — is one of the consequences of this groundbreaking and potentially disconcerting shift in our workplace zeitgeist.

Bill 132, which amended various statutes with respect to sexual violence and harassment, domestic violence and related matters, the high-profile Jian Ghomeshi and Harvey Weinstein sex scandals and the ensuing #MeToo movement had made it harder for employers and organizations to look the other way when it comes to workplace harassment.

“If we lost a good member of our team (due to a sexual harassment claim), that was the cost of doing business,” Rudner describes the pre-existing workplace climate before these highly publicized scandals emerged. “But all of sudden, the impact of being known as a company that tolerates sexual harassment was so devastating to the company’s reputation and to the bottom line that they couldn’t allow it anymore. That’s really what fuelled the change.”

Rudner cited the rush to judgement in the case of former Ontario Conservative party leader Patrick Brown as a “shocking example” of what had become the norm. Brown, who resigned as party leader in January 2018 following allegations of sexual assault, published a book in the same year, claiming that his fall from grace was a “political assassination” driven by backroom politicking.

“What I found fascinating — but also a little disturbing,” says Rudner, “was all of a sudden, companies and organizations who would have rejected allegations without even investigating them were suddenly accepting them blindly without investigating them, and the repercussions for the accused could be absolutely devastating.”

An investigation is not a prosecution, he stresses. “You are not going into it with the goal of proving allegations. You are going into it with the goal of understanding what actually happened and objectively investigating it.”

Cynthia Ingram, a senior employment lawyer with Piccolo Heath LLP in Toronto, agrees. “Allegations are not facts; allegations need to be tested,” she says. ”Until you review them, it is wrong to think an allegation is the same as a fact.”

In a case that Rudner’s law firm handled five years ago, three female employees made sexual-harassment allegations against their supervisor. A third-party investigator concluded that these employees were actually disgruntled by the fact that one of them had not been promoted.

“It became obvious from the evidence that they basically said the best way we can get him out is to make allegations of sexual harassment,” Rudner recalls. “Fortunately, we had a good investigator who realized that their claims were not only unfounded, but manufactured.” The company took action against the three employees.

“It is a great example of how sexual-harassment allegations are being weaponized,” Rudner says of the case. “But I believe now, the pendulum has swung back closer to the centre where employers will take these allegations seriously, but will investigate fairly before they take any action.”

Ingram does not believe that Canadian workplaces are struggling with a growing number of false claims centering on sexual harassment. “Absolutely, it can be misused,” she says, “but accusations of this nature are not more open to misuse as any other type of bad conduct.”

A KNOTTY PROBLEM

In 2016, the Ontario government passed Bill 132: The Sexual Violence and Harassment Action Plan Act aimed at making workplaces safer for victims of sexual violence and harassment. The amendments to the Occupational Health and Safety Act took place following a spate of highly public sex scandals involving politicians, entertainers, sport figures and cultural movers and shakers that culminated in grassroots social-media movements that went viral around the world. The two most well known social-media movements were #MeToo and #Time’s Up. Many human-rights advocates see these movements as historic turning points in terms of advancing gender equality, especially in the workplace.

While social media is a powerful vehicle that can effect cultural change in a positive direction, it can also interfere with the integrity of the investigative process, suggests Ingram, who compares social media to the modern-day equivalent of the water cooler where allegations and innuendos — proven or otherwise — can take on a life of its own.

“The more you are unable to control the confidentiality of the process,” she says, “the more you risk the integrity of the process.” Once the genie gets out of the bottle, it is nearly impossible to put it back. “So even if it is proven wrong,” she says, “the damage is done.”

The lack of evidence is one of the greatest challenges when investigating sexual-harassment complaints, says Ryan Baxter, an employment lawyer with McInnes Cooper in Halifax. In many cases, the alleged conduct would have occurred in private, creating a he-said-she-said situation. The investigator only has the word of the complainant and the accused to go on. Furthermore, it can be difficult to convince witnesses to come forward for fear of reprisals.

One pitfall that is common among employers is failing to provide a mechanism for reporting sexual-harassment allegations. “Employers must provide all employees, including those in senior management and other leadership positions, with mechanisms for reporting sexual harassment,” Baxter says.

Other pitfalls include delaying an investigation and failing to ensure a thorough investigation. “The bottom line is that all allegations of sexual harassment must be addressed promptly and fully,” Baxter adds.

Conducting a proper and thorough investigation is critical to protect employers from punitive damages claims, human-rights complaints, civil legal action or grievance. According to McInnes Cooper, the following are five steps of conducting a proper workplace investigation:

1. Procedural Fairness: An employer must investigate the circumstances before disciplining an employee. An effective workplace investigation must be neutral, fair, thorough and timely.
2. Framework: Implementing a systematic investigation framework defining the objectives, scope, timing and the person tasked to look into the complaint ensures the integrity and propriety of the investigation.
3. Preliminary Issues: The investigator and employer should address any preliminary issues before embarking on investigation interviews. Issues that need to be addressed include disclosure, privacy and assessing the nature of the complaint and whether it presents safety concerns that require alternative work arrangements.
4. Interviews: This is one of the most crucial part of an investigation. Conduct interviews while memories are fresh and where possible, team-up for better note taking.
5. Finalize the Investigation: Conduct all necessary interviews and obtain relevant documents, offer an outcome of the investigation and prepare a report if required.

UP AND UP

The shift in workplace gender relations is reflected in the numbers. According to Montreal-based Mary Polychronas, a psychologist with Horizon Occupational Health Solutions, the United States has seen a significant increase in sexual-harassment charges. In 2018, there was a 50 per cent rise in sexual-harassment lawsuits. The number of visits to the sexual-harassment webpage of Washington, D.C.-based Equal Employment Opportunity Commission (EEOC), which enforces civil-rights laws against workplace discrimination, also doubled over the past year.

Nearly 25 per cent of Canadians surveyed indicated that they had been sexually harassed at work, according to a 2018 survey by public strategy and communications firm Navigator Limited in Toronto. Of that number, two in five said the sexual harassment stemmed from a person who had direct influence over their career.

For the Human Resource Professionals Association (HRPA) in Toronto, its numbers relating to workplace sexual harassment are substantially higher. In an online survey of its members in 2018, results showed that 43 per cent of women and 12 per cent of men reported that they had been sexually harassed or assaulted at work.

“The reality is sexual harassment now is not tolerated the way it was five or even three years ago, which is great,” Rudner says. “Women should not have to deal with sexual harassment in the workplace. There were a lot of women in the past that just grinned and bore it, because they didn’t think they had any choice.”

But changes in how workplace sexual harassment and violence are viewed today have not gone far enough to empower female workers to feel wholly comfortable in coming forward, according to Debora De Angelis, Ontario director with the United Food and Commercial Workers Canada in Rexdale, Ontario. Many employees are still enduring sexual inappropriateness and violence on the job.

“I know lots of women who don’t say anything, because they don’t feel the culture has shifted. Until people feel safe, they won’t come forward,” De Angelis says.

The perception that workplaces are not doing enough to address sexual harassment may hold water. According to the 2018 Navigator survey, Canadians expressed ambivalence about internal policies and fewer than 25 per cent rated their organization as doing a “very good job” on a variety of metrics.

The HRPA believes that the only way to combat workplace sexual harassment and violence is for employers and organizations to create a standalone sexual-harassment policy, because egregious issues require specialized and sensitive handling. The policy should achieve the following:

• The sexual-harassment policy should be given to all employees on their first day of work and be easily accessible on the organization’s website;
• Define what constitutes sexual assault and harassment;
• Clearly outline how to lodge a complaint, rights that both the complainant and the accused have in the investigation process, what the investigation process entails, the process for making findings of fact and collecting evidence, how the final determination is made, who makes it and what the possible penalties are;
• Ensure that the complaint investigation process is completely transparent and procedurally fair. In practice, this means that the complainant must be kept informed of how her/his complaint is being managed in every step of the process and what is the outcome;
• Train employees on the content of the company’s harassment policy, what to do if they are being harassed and how to be an effective bystander; and
• Train supervisors and managers on how to prevent sexual harassment and foster an open, respectful environment.

CULTURE OF FEAR

While a corporate culture that no longer tolerates sexual harassment and violence creates a safer environment for all, the process of working towards such a culture is not without land mines. Male workers, especially those who are in supervisory or management roles, are fearful of the current lens through which workplace sexual politics are scrutinized, suggests Wendy Ellen, president and principal consultant of human-resources consulting firm, Wendy Ellen Inc. in Calgary.

“To them, it is a whole new world,” Ellen says. “I have heard from a number of my male clients that they need new training on how to work with women and they don’t want to be in an office alone with a woman. They are concerned with protecting themselves.”

According to Ellen, she has been asked to train leadership and middle-management teams comprising primarily of men on how to conduct themselves when interacting with their female counterparts.

The fear of potential harassment allegations is also influencing how companies operate and giving rise to a play-it-safe approach, such as curtailing traditional duties like business travel involving a male and female employee. “That’s not happening so much anymore,” Ellen notes.

That phenomenon is also unfolding in the medical profession. An article, Men’s Fear of Mentoring in the #MeToo Era — What’s at Stake for Academic Medicine? published in December 2018 cited that men in positions of power in the medical field are afraid to mentor women out of fear that sexual-harassment allegations could put their reputation and hard-earned career on the line.

This culture of fear could have repercussions on the career advancement of women in medicine as mentorship is critical to their professional development, especially in a sector where female leaders are few and far between. Apart from creating a rift in workplace gender relations and breeding distrust, it can also deepen institutional discrimination against women.

“If leaders and educators in academic medicine can examine these expressions of fear and find ways to move beyond them, our community will ultimately better support women’s career advancement,” the article stated.

Some of the ways in which male physicians can mitigate their fears towards mentorship opportunities involving female medical professionals and pave the way to gender equity in the profession are as follows: create a safe space where male and female colleagues can discuss concerns about mentoring; be transparent in compensation arrangements; support universal access to family and medical leave policies; offer leadership-development programs and implicit-bias training; encourage mentorship and sponsorship programs; and provide flexible career paths in academic medicine with promotions and advancement criteria that reflect a range of responsibilities and unique contributions by female physicians.

Employers who do not address workplace sexual harassment will lose female employees and exacerbate the gender wage gap, as women could suffer a pay cut when they seek employment with another employer, De Angelis suggests.

For Ellen, she is concerned that this cultural reckoning and resulting sensitivity around sexual mores could dampen the collegiality, friendship and appreciation between men and women at work.

While she is all for a respectful workplace that provides an avenue for employees to report any form of misconduct, the cloud of sexual-misconduct harassment has imbued workplace gender relations with an unprecedented tension. It also leaves many men confounded on what it means to behave in an appropriate manner when they are around  their female colleagues.

“I hope we don’t take the humanity out of going to work,” Ellen says. “It can be fun to joke around and enjoy office banter, but you have got to know where the line is and unfortunately, some people just don’t.”

As good practices start the top of each organization, Polychronas stresses the importance for senior management and those in supervisory roles to exemplify appropriate behaviours in the presence of employees at all times.

Baxter thinks that the cultural shift we are seeing today is a step in the right direction towards creating a safer and more open workplace, as well as compelling us to take a hard look at how we investigate sexual-harassment allegations.

“The vast majority of sexual-harassment allegations are brought in good faith by employees looking to do the right thing,” Baxter says. “So long as employers have robust and impartial policies in place for investigating and responding to sexual-harassment allegations, the risk posed by false allegations will be minimized.”

Kelly Putter is a writer in Beamsville, Ontario.