Canadian Lawyer InHouse

43 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER/OCTOBER 2018 Dozens of high-profile celebrities, politicians, athletes and business ex- ecutives have since been ex- posed as harassers in a wave of publicity not seen before. Public relations firm Te- min and Company notes that, as of early July, 425 celebrities and corporate executives — who are mostly men — have been outed since the first Bill Cosby trial on sexual assault charges, which ended in June 2017, a few months before the Weinstein al - legations became public and the #MeToo movement took flight. The list grows almost weekly, leav- ing in its wake destroyed careers and damaged reputations. Boards and com- panies are left scampering to deal with the fallout. Some of the high-profile downfalls include casino and hotel magnate Steve Wynn, who resigned as chairman and CEO of Wynn Resorts, and Gilbert Rozon, founder and president of Canada's Just for Laughs festival, considered the world's big - gest comedy festival, a scandal that led to the sale of the company. In July, Intel CEO Brian Krzanich re- signed after having a consensual relation- ship with an employee, which breached his company's non-fraternization policy be- tween employees and managers. It also extends to the boardroom. Billion- aire David Bonderman, co-founder of in- vestment firm TPG Capital, stepped down from Uber's board after making sexist com- ments at a meeting to address gender bias. In less than a year, Milano's tweet has managed to do what decades of the women's movement could not — get employers and company boards to take sexual harassment in the workplace seriously. Casey Dockendorff, a partner at employ - ment law firm Filion Wakely Thorup Ange- letti LLP in Toronto, says #MeToo has had a "not so subtle impact particularly on the HR world." However, she notes, "Sexual harassment in the workplace has existed for a long time." Ken Fredeen, general counsel at Deloitte LLP and a foot solider in the fight to cre - ate more diverse workplaces, welcomes the #MeToo movement. "It is flushing out bad things that may have gone on for a long time. We are flushing them out much faster and in a much more meaningful way." He says the "foundation" of the #MeToo movement is "around how men and women work together in the workplace." "It's not just around sexual harassment; it's around how do you create an inclusive workplace." It falls on the shoulders of in-house coun - sel to ensure that their company policies, procedures and investigative techniques can withstand the heightened scrutiny of a #MeToo environment. Lauri Reesor, a partner at employment law firm Hicks Morley, notes that she is "seeing an increase in the number of inter - nal complaints that are being made" involv- ing corporations. "People are feeling em- powered to come forward." It's not just complainants that are taking action; politicians are rallying, too. U.S. government relations firm Multi- State Associates notes in a February 2018 blog on sexual harassment that lawmakers introduced 80 pieces of legislation in 21 states related to sexual harassment in 2018, covering both the private and public sectors. Canada is covered by a patchwork of sexual harassment rules and regulations involving a blend of human rights codes and occupational health and safety laws, as well as the 1989 Supreme Court of Canada sexual harassment ruling in Janzen v. Platy Enterprises Ltd. Provinces, nonetheless, continue to tin - ker with their legislation. Ontario tough- ened its workplace sexual harassment laws in 2016, prior to the Weinstein allegations. It amended the province's Occupational Health and Safety Act, defining what con- stitutes sexual harassment in the workplace. Known as Bill 132, the amendment also required employers to develop a workplace harassment program and conduct an inves - tigation when a complaint is made. In March, Quebec amended its labour standards law, adding protections from psy- chological harassment. The law already cov- ered sexual harassment. "We are certainly seeing other provinces adopting these kinds of legal obligations and regulations for employers," says Emma Phillips, a union labour lawyer at Goldblatt Partners LLP. What's notable, lawyers say, is that the #MeToo movement is being picked up by arbitrators, tribunals and judges who rule on cases involving harassment. A May 2018 ruling in Conklin v. Univer - sity of British Columbia is one example where #MeToo is actually cited in the ruling and played an important role in the adjudicator's reasoning. The case dealt with the firing of a university academic adviser, whose job was to support undergraduate students. In a bio on a gay dating app, he made ref - erence to the fact that he was a university employee and was located in a B.C. student residence. The university learned about it and fired him. The employee complained to the B.C. Human Rights Tribunal, arguing he was discriminated against based on his sexual orientation. However, the B.C. Human Rights tri - bunal member hearing the complaint dis- missed it and fired a #MeToo warning shot at employers. "Ultimately, while there may not be a policy prohibiting relationships between employees and students outright, I am of the view — particularly in this #MeToo moment of heightened public awareness and scrutiny of the use of power on campuses and in workplaces — that UBC has an obligation to safeguard against its It is flushing out bad things that may have gone on for a long time. We are flushing them out much faster and in a much more meaningful way. KEN FREDEEN, Deloitte LLP

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