America’s Business, entertainment and political worlds have been shaken as successive waves of sexual harassment allegations break have broken out. In Canada, meanwhile, corporate leaders and their legal advisors are also facing these challenges.
Canada’s most notable case in this area involved Jian Ghomeshi, the once popular CBC radio host. Ghomeshi’s reputation was torn asunder in 2014 after allegations that he bullied and sexually harassed at least eight women at the CBC and outside the workplace. Despite his 2016 acquittal on five charges, Ghomeshi’s firing and highly publicized courtroom trial, corporate lawyers say, was a kind of alarm bell in the Canadian business world for employers to make their workplaces safer.
What should in-house counsel and external lawyers do to ensure that the requisite shift in attitude occurs at the top echelons? How can they ensure that their founders, C-suite executives and directors lead positive change, while preventing sexual or other harassment?
In Canada, the Ghomeshi case was one of those extremely rare instances where an investigation report into workplace sexual harassment was made public. The Report was prepared by Janice Rubin and Parisa Nikfarjam of Rubin Thomlinson LLP, a Toronto-based employment law firm specializing in workplace training and investigations concerning harassment and violence.
Their Report made nine recommendations and pointed out CBC management’s numerous missed opportunities to act earlier to mitigate Ghomeshi’s toxic impact on the women he worked with. It has served as a guideline of what to do when rumours or complaints of bullying, harassment, sexual harassment or other destructive behaviours circulate through a workplace. Two things stood out in the report for Gallagher Healy. The first was about capacity — the resources at hand, especially a clear policy and proper training that give an organizaiton ways to prevent or reduce harassment of any kind. Only then can an organization investigate and deal with harassment if it happens. The CBC was found lacking.
“The other idea that came out of the Ghomeshi situation was this idea of ‘host culture,’” says Gallagher Healy. “This idea that the host was untouchable. What the report ultimately drives home for employers,” continues Gallagher Healy, “is that no one is untouchable. Everyone should be bound by the proper rules of how we treat each other.”
Gallagher Healy got a lot of anxious questions from clients after the Ghomeshi report went public, “particularly around the issue of, when is there sufficient information [before the complaint] for the employer to take action or do an investigation.” Often, especially when harassment involves superiors, victims are reluctant to file official complaints for fear of inaction or retribution. So they suffer silently. It doesn’t help that, in Canada, some companies still fail to provide adequate means for harassment victims to discreetly and reassuringly express their complaints through the right process.
Rubin Thomlinson recently surveyed companies about, among other things, the percentage of employers that had improved their harassment complaint mechanisms with a confidential hotline.
Janice Rubin was dismayed by the results. The respondents were generally from companies that had more proactive harassment policies, “yet only 50 per cent of them had [created a hotline],” she says.
Are North America’s business leaders actually getting the message about what constitutes harassment, or how their employees — and perhaps even they themselves — need
to be restraining themselves and checking their behaviors?
“I think there’s a lot of training going on at Canadian companies,” says Katherine Pollock, a Toronto partner with Fasken Martineau DuMoulin LLP who has helped large Canadian financial institutions implement harassment policies, and trains employees in areas such as properly conducting harassment investigations.
Still, Pollock says that, at receptive companies, she has been able to tweak training specifically for senior and executive leadership. For them, Pollock says, there’s an added dimension of “setting the tone for the organization; that the culture of the place has to emanate from them. And it was critical that they live the values set out in the policy and not tolerate, or be seen to be tolerating, any offside behavior.”
That’s not the norm, though. Pollock told Lexpert, “I believe that companies could do a better job in ensuring top managers — who, after all, have the ability to control the message and set the standards — are trained and understand that it is part of their role to effect cultural change when necessary.”