Custom Media

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E / J U L Y 2 0 1 8 43 of a problem than it was 15 years ago, according to a C-Suite Survey by the Gandalf Group. "That means all the stuff is buried with organizations," says Janice Rubin, a leading employment Toronto lawyer considered to be a pioneer in the field of workplace investigations and co- founder of Rubin Thomlinson LLP. "And what #MeToo has done is move the dial a little bit. So, some of the stuff has become more overt." While the jury is still out as to whether workplace sexual harassment has become more prevalent, one thing is clear: Employment and labour lawyers are busy, advising employ- ers and employees alike, conducting investigations and training people to conduct investigations and helping with training. "The calls are still com- ing," says Gail Gatchalian, chairwoman of the Canadian Bar Association's National Labour and Employment section and a partner with Pink Larkin LLP. "I expect this trend to keep happening and I expect that the #MeToo movement will hit more and more industries. There's been a bit of a shift culturally in society where women are feeling more supported and society is more willing to listen to a woman's per- spective on the issue." Employers, driven in part by apprehen- sion, are now beginning to view workplace sexual harassment not only as a legal liabil- ity but also as a serious business and repu- tational risk. But, for the most part, they still tend to move forward only after they receive complaints and not carry out the "hard proactive work" of transforming the organization's culture to address the factors that give rise to abuse of authority, harass- ment and workplace sexual misconduct, as employment and labour lawyers strongly recommend. A 2007 University of Calgary study that analyzed data from 41 studies points out that the single biggest predictor of sexual harassment in the workplace is how permissive an organization is toward this behaviour. Changing workplace culture, to be fair, is easier said than done. It may have become a cliché, but the drive to change begins at the top. The struggles faced by the Royal Canadian Mounted Police are instructive. The RCMP has been plagued with workplace harassment, bullying, intimidation and sexual harassment for decades. A toughly worded external review of harassment in the RCMP published last year revealed that, in the past decade alone, the RCMP conducted more than 15 reviews of its organizational culture and issued more than 200 recommenda- tions, but few of them were implemented. Despite repeated calls for action, the report underscored a distinct lack of commitment by generations of senior RCMP leaders to undertake the kind of broad-scaled, systemic change required. Instead, most initiatives were short-lived or ad hoc. "The problem with that is that if the membership is disaffected and feels that it's not a genuine effort or concern then they are really going to be skeptical about any initiatives that are put in place," says Emma Phillips, a labour lawyer with Goldblatt Partners LLP and counsel to the RCMP external review. At a minimum, employers should have a written policy dealing with sexual harass- ment that has a clear and investigative pro- cedure that requires investigations be con- ducted competently, fairly and in a timely fashion. But any policy needs the will to put in place processes that address the well- known barriers that inhibit victims from coming forward such as the fear of reprisal, concern over future job prospects, a lack of confidence in the reporting process or trepidation over not being believed. Or, as Gatchalian puts it: "What workplaces need to think about is how to change the equa- tion so that the cost of coming forward isn't perceived to be outweighed by the desire to make a formal complaint." Sexual harassment training can help and can be a critical component to encourage change in workplace cul- ture, say employment and labour law- yers. On the other hand, it can hinder and reinforce gender stereotypes. Inex- pensive, off-the-shelf training videos, online software or, worse still, Power- Point presentations (some subjected to it referred to it as "Death by Power- Point") can have a regressive effect as it becomes an object of ridicule. There's no way around it. It may sound dreary and technical, says Phillips, but the most effective training is conducted by a "high-quality" person, is interactive and adapted to the specific workplace. Making inroads is so-called bystander training. Traditionally used in emergency situations, bystander training has been adopted by the Canadian Armed Forces and is being taught at a growing number of colleges and universities. Research by the Australian Human Rights Commission reveals that bystanders were more likely than those preyed on to act against sexual harassment. It seeks to encourage indi- viduals to act less as "passive" bystand- ers and to be more active. Bystander training empowers individuals to recog- nize inappropriate conduct and trains them to intervene, sometimes discreetly and diplomatically and other times more assertively. In a word, sexual harassment becomes everyone's business. "It can be a really effective way of rein- forcing respectful workplace policies and culture and also supporting individuals in the workplace when things do hap- pen so that they feel there is a support- ive network for them," says Phillips, who acted as counsel to the External Review on Sexual Misconduct and Sexual Harassment in the Armed Forces and to an indepen- dent review commissioned by the United Nations on sexual abuse by peacekeepers. Rubin adds that bystanders are an unde- rutilized resource, "and considering the fact that most of this stuff goes underground, bystanders can help bring sunshine into these situations." Other avenues that employers are exploring include implementing a whistle- "[Bystander training] can be a really effective way of reinforcing respectful workplace policies and culture and also supporting individuals in the workplace when things do happen so that they feel there is a supportive network for them." Emma Phillips, Goldblatt Partners LLP

• Cover