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HR After #MeToo

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Presented on June 19th 2019 to HRPA Grand Valley in Kitchener, ON.

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HR After #MeToo

  1. 1. For: HRPA - Grand Valley Chapter Date: June 19, 2019 www.rudnerlaw.ca HR After #MeToo Stuart Rudner stuart@rudnerlaw.ca 416.864.8501 Presented by:
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer The user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others. This presentation is not provided for the purpose of providing legal advice. Every situation is unique and involves specific legal issues. If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Agenda 1.History of Sexual Harassment in the Workplace 2.Hiring an Alleged/Admitted/Convicted Harasser 3.Investigating Harassment 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 History of Sexual Harassment in the Workplace ● historical tolerance / wilful blindness ● protection of harassers, punishment of those who complain ● risks seen as “cost of doing business” 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 History of Sexual Harassment in the Workplace ● some evolution through the 80s and 90s ● more awareness of workplace sexual harassment ● still not always taken seriously, rarely formal protections in place ● complaints were often CLMs 6
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 2010: “An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters” a/k/a Bill 168 ● response to horrific murder after relationship between doctor and nurse ended ● first legislation in Ontario specifically targeting workplace harassment, but no focus on sexual harassment ● many new obligations on employers ● safety does not only relate to loose floorboards anymore 8
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 9
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 2016: Sexual Violence and Harassment Action Plan Act (Bill 132) ● previous Violence and harassment provisions did not specifically address workplace sexual harassment ● provincial government began attacking the problem head on - advertising campaign, new law ● many new obligations on employers, proactive and responsive 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 Workplace Harassment now includes Workplace Sexual Harassment: (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; ("harcèlement sexuel au travail") 11
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 New Obligations for Employers v ● develop and maintain a workplace harassment program ● establish a complaint mechanism for reporting complaints or incidents of workplace harassment ● conduct investigation whenever it becomes aware of a complaint or incident of workplace harassment ● maintain confidentiality of information ● notify complainant and respondent in writing of the results of an investigation and any corrective action taken 12
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Increased Fines under the OHSA As of December 14, 2017, fines for violations of the OHSA: ● fine for individuals increased from $25,000.00 to $100,000 ● fine for corporations increased from $500,000.00 to $1,500,000.00 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 14 October 2017
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 15 The Rush to Judgment ● overnight, companies went from refusing to believe the complainant ● rarely bothering to investigate ● to immediately cutting ties with the accused ● rarely bothering to investigate
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 17 The Right Way
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 OHSA: Employer Responsibilities ● MUST have harassment policy including workplace sexual harassment ● MUST ensure all workers are thoroughly trained on policy ● MUST have reporting mechanism where employees can complain about incidents ● MUST have thorough procedure for investigating incidents 18
  19. 19. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Lessons we can learn? ● employers cannot ignore the warning signs or the direct complaints ● Ontario employers have a responsibility to investigate incidents or even suspicion of workplace sexual harassment ● also have obligation to accused to investigate fairly ● investigations are critical 19
  20. 20. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 When the Harasser Returns 20
  21. 21. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 John Lasseter ● one of the biggest names in Disney animation - directed Toy Story, Cars ● announced a ‘leave of absence’ in 2018, same day reports surfaced about a “pattern of alleged misconduct” ● left Disney at the end of 2018, immediately hired by Skydance Animation ● Skydance attempted to place him on a tight leash via his contract 21
  22. 22. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 John Lasseter ● Actress Emma Thompson publicly refused to work with Lasseter: If a man has been touching women inappropriately for decades, why would a woman want to work for him if the only reason he’s not touching them inappropriately now is that it says in his contract that he must behave “professionally”? I am well aware that centuries of entitlement to women’s bodies whether they like it or not is not going to change overnight. Or in a year. But I am also aware that if people who have spoken out — like me — do not take this sort of a stand then things are very unlikely to change at anything like the pace required to protect my daughter’s generation. 22
  23. 23. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Closer to home: Colistro v. TBayTel FACTS: ● Linda Colistro worked for TBayTel as an administrator ● 2007 - Company announces new VP hire - Colistro says she’s “on the verge of a nervous breakdown” and takes sick leave ● company learns VP was accused of sexually harassing Colistro 11 years prior ● company hires VP anyway, says they’ll discuss it with him 23 Constructive Dismissal?
  24. 24. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Colisto v. TBayTel ● trial judge: constructive dismissal ○ Colistro was re-victimized by hiring ● awarded 12 months’ pay in lieu of notice + moral damages = $100,000 ● Court of Appeal agreed that Colistro was constructively dismissed ● hiring proved Company had no intention of being bound by contract ● BUT - Colistro denied $3M of intentional infliction of mental suffering ● she was ordered to pay $200,000 in costs 24
  25. 25. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Colisto v. TBayTel Lessons Learned: ● Colistro lost money in the end because of the structure of her claim, BUT ● hiring someone known to have harassed was constructive dismissal ● both trial judge and Court of Appeal agreed that “a reasonable person would see Colistro’s continued employment as intolerable” 25
  26. 26. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Points to Ponder 1. you receive an application from someone that you “heard” had been let go a year ago due to sexual harassment 2.you hire a new manager, and a long-standing member of the team comes to you to tell you that he previously sexually harassed her at another company, which is why she left, and is already at it again 3.you get a call from someone claiming that your new hire harassed her, which is why he “left” his last job 26
  27. 27. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Employees’ Rights ● OHSA guarantees right to safe workplace free from hazards (incl harassment) ● employers must take reasonable steps to address safety risks ● employees entitled to information about potentially violent coworkers ● yet new employer may never know about previous allegations 27
  28. 28. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations/Suspicion First Steps in the Investigation Process ● do not ignore ● contact your Employment Lawyer ● consult your policy / collective agreement ● determine who is going to conduct the investigation ○ internal or external third party investigator? ● develop an investigation plan remember: investigation is NOT a prosecution 28
  29. 29. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations ● notify both parties ● require but do not promise confidentiality ● be mindful of complainant and accused ○ensure safe work environment ○interim suspension / transfer? ○consider referral to EAP ● warn of repercussions for interference, bad faith 29
  30. 30. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 How not to Respond: Doyle v Zochem Inc. (2017) ● Doyle: plant supervisor, health & safety coordinator, only woman in the plant ● repeated sexual harassment from plant maintenance manager, including: staring at her breasts and miming taking a picture of them, repeatedly telling her she needed to get “laid”, or needed “a little pounding”, etc. ● reported sexual harassment, employer did a “cursory” investigation ● she was assured that her job was secure, but dismissed one week later (decision had already been made) ● suffered serious mental distress as a result 30
  31. 31. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Doyle v Zochem Inc. (2017) Award: ● damages for wrongful dismissal: $55,849.99; ● damages pursuant to the Human Rights Code: $25,000.00; and ● moral damages: $60,000.00 31
  32. 32. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Hallmarks of a Good Investigation ● unbiased ● thorough ● timely ● well documented ● defensible conclusions ● recommendations & action items 32 OHSA does not mandate format of investigations - must be “appropriate in the circumstances”
  33. 33. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Interviewing the Complainant/Respondent and Witnesses ● interview complainant ● do not make promises of confidentiality you cannot keep ○ but promise reasonable efforts ● collect ○ all relevant details ○ evidence with respect to incident(s) (e.g. emails, text messages, photos, etc.) and ○ names and contact information of witnesses 33
  34. 34. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Interviewing Interviews ● respondent must be given opportunity to respond to allegations ● witnesses must also be interviewed ● additional evidence collected ● “is there anything else I should be aware of?” ● keep detailed notes 34
  35. 35. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Reaching a Conclusion ● once all evidence is collected, investigator must reach a conclusion ● assess credibility ○ compare to evidence ○ what has “air of reality”? ● justify conclusion 35
  36. 36. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Preparing a Report ● background / allegations ● mandate ● process ● documents ● witnesses ● policies ● evidence 36
  37. 37. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 After the Investigation Communicating the Results ● “complainant and respondent must be informed, in writing, of results of investigation and any corrective action to be taken” ● does not require providing copy of investigation report? ● consider need for discipline, training, etc ● assess policies & procedures in light of experience 37
  38. 38. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Questions? 38
  39. 39. You don't have employment law issues; you have business decisions to make. We're here to help. Employment Lawyers And Mediators WWW.RUDNERLAW.CA We want to be your trusted advisor. Parkway Corporate Center 100 Allstate Parkway, Suite 600 Markham, Ontario L3R 6H3 Phone No: 416.864.8500 or 905.209.6999 E-mail: info@rudnerlaw.ca
  40. 40. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 THANK YOU! Feel free to contact us if we can be of assistance. We’d be glad to speak with you. 416.864.8500 905.209.6999 www.rudnerlaw.ca info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 40 ➢Follow our blog at rudnerlaw.ca/blog ➢Check us out on LinkedIn, FaceBook, and Instagram ➢Tune in to Fire Away, our monthly online show ➢View our videos on our YouTube channel ➢Listen to our podcasts ➢To receive regular Employment Law updates and keep on top of what we are up to, sign up for our newsletter at rudnerlaw.ca/newsletters

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