This article is set before Oct. 2017, before the downfall of Harvey Weinstein.
Jul. 5, 2017 "The real cost of sexual-harassment claims": Today I found this article by Daniel Lublin in the Globe and Mail:
Jul. 5, 2017 "The real cost of sexual-harassment claims": Today I found this article by Daniel Lublin in the Globe and Mail:
High-profile cases have made Canadians more aware of improper conduct at work, but compensation can be difficult to determine
DANIEL LUBLIN Partner at Whitten & Lublin Employment Lawyers in Toronto
It is not surprising that my law firm now fields more calls about sexual-harassment claims than ever before. With recent workplace sexual-harassment cases making headline news and the proliferation of written sexual-harassment policies, Canadians are now much more mindful of workplace conduct that may cross the line – and the legal liability that can flow from it.
However, what usually surprises both employers and employees is the monetary value that human-rights tribunals are ascribing to these cases.
How much are workplace sexual-harassment claims actually worth?
Lost wages
Unlike wrongful dismissal lawsuits, in which courts award compensation for lost wages that are proportionate to an employee’s age, tenure and position, human-rights tribunals pay little regard to precedent and these traditional factors.
Instead, these tribunals have the power to award employees compensation for all lost wages that would not have occurred but for the discrimination. In sexual-harassment cases, these damages can be significant.
In one recent case that provides a good example, a tribunal awarded a hair stylist one year’s salary after she was sexually harassed and then fired. She had only six months’ tenure. If she were not sexually harassed but still fired, her claim would only have been worth a few weeks’ pay.
The ability and willingness of human-rights judges to award lost wages for an employee’s entire period of unemployment significantly increases the risk for employers when proceeding to hearings in these cases.
Distress
Distress
In addition to lost wages, workplace sexual-harassment victims can also claim compensation for mental distress and violation of their right to be free from discrimination.
These payments are known as general damages, and they do not require an employee to leave his or her job to be eligible.
What is the going rate for general damage claims in workplace sexual-harassment cases?
In one recent case that examined a number of precedents, the judge said that awards of general damages have typically ranged from $12,000 to $50,000.
In one recent case that examined a number of precedents, the judge said that awards of general damages have typically ranged from $12,000 to $50,000.
Where there are a few incidents of harassment of a less serious nature that generally do not include physical touching and no loss of employment occurs, damages should be at the lower end of the spectrum, reasoned the judge.
However, in that very case, an employee accused her boss of hugging her so tightly she could feel his genitals pushed against her, rubbing his hand up and down her leg, kissing her and threatening her employment.
However, in that very case, an employee accused her boss of hugging her so tightly she could feel his genitals pushed against her, rubbing his hand up and down her leg, kissing her and threatening her employment.
Interestingly, the judge awarded her only $20,000 in general damages, finding that this behaviour landed in the middle of the spectrum of seriousness.
In another recent case, the owner of a small company mistakenly believed that his sexual interest in a female subordinate was mutual and tried to kiss her, and she promptly rebuffed him. Afterward, he treated her so differently that she left the job and never returned. She was awarded $28,000 in general damages.
In another case in which a police sergeant called a female officer a “bimbo” and expressed interest in her “cookie,” a human-rights tribunal awarded the officer $20,000 for her mental distress.
These damages, while not insignificant, remind us that unlike in some other jurisdictions outside Canada, a jackpot award for workplace sexual harassment is unlikely. However, exceptional facts can result in exceptional payments.
One recent Ontario case has moved the issue toward more considerable damages for sexual harassment. The owner of a food processing plant was ordered to pay $150,000 in general damages to a migrant worker after he forced her to perform oral sex on several occasions and used the threat of deportation to force her to have intercourse with him. In that case, the judge sent a strong message that, in extraordinary cases, damages awards can go beyond the customary range seen in other matters.
In Ontario and some other Canadian jurisdictions, human rights tribunals also have the authority to award public-interest awards and future-compliance remedies. Employers are commonly ordered to undergo human-rights training, and create or revise human-rights policies and post them in the workplace.
Most Canadian jurisdictions empower workplace tribunals to make any award necessary to stem further discrimination.
Most Canadian jurisdictions empower workplace tribunals to make any award necessary to stem further discrimination.
In my own cases, I routinely request an order that employers guilty of discrimination publicly apologize for their actions as the threat of a public shaming often far outweighs the cost consequences of a negative damage award. This has not yet occurred, but that does not mean it won’t happen in the future.
In addition to lost wages, workplace sexual harassment victims can also claim compensation for mental distress and violation of their right to be free from discrimination.
Jul. 14, 2017 "U.S. poll shows fear of opposite sex at work": Today I found this article by Claire Cain Miller in the Globe and Mail. This was in the life section, but it could be in the business section too:
Many American men and women say it’s not okay to be in one-on-one situations. Reasons range from safety concerns to impropriety
Men and women still don’t seem to have figured out how to work or socialize together. For many, according to a new Morning Consult poll conducted for The New York Times, it is better simply to avoid one another.
Many men and women in the United States are wary of a range of one-on-one situations, the poll found.
Around one quarter think private work meetings with colleagues of the opposite sex are inappropriate.
Nearly two-thirds say people should take extra caution around members of the opposite sex at work.
A majority of women, and nearly half of men, say it’s unacceptable to have dinner or drinks alone with someone of the opposite sex other than their spouse.
Around one quarter think private work meetings with colleagues of the opposite sex are inappropriate.
Nearly two-thirds say people should take extra caution around members of the opposite sex at work.
A majority of women, and nearly half of men, say it’s unacceptable to have dinner or drinks alone with someone of the opposite sex other than their spouse.
The results show the extent to which sex is an implicit part of our interactions. They also explain in part why women still don’t have the same opportunities as men. They are treated differently not just on the golf course or in the boardroom, but in daily episodes large and small, at work and in their social lives.
Further, the poll results provide societal context for U.S. Vice-President Mike Pence’s comment – made in 2002 and resurfaced in a recent profile – that he doesn’t eat alone with any woman other than his wife.
Attitudes reflect a work world shadowed by sexual harassment. In recent news about Uber and Fox News, women see cautionary tales about being alone with men.
In interviews, people described a cultural divide. Some said their social lives and careers depended on such solo meetings. Others described caution around people of the opposite sex, and some depicted the workplace as a fraught atmosphere in which they feared harassment or being accused of it.
“When a man and a woman are left alone, outside parties can insinuate about what’s really going on,” said Christopher Mauldin, a construction worker in Rialto, Calif.
“Sometimes, false accusations create irreversible damages to reputations.”
He said he avoids any solo interactions with women, including dining or driving, as does his girlfriend with other men. When he needs to meet with women at work or his church, he makes sure doors are left open and another person is present.
Others described similar tactics, including using conference rooms with glass walls and avoiding alcohol with colleagues. “Temptation is always a factor,” said Mauldin, 29.
Others described similar tactics, including using conference rooms with glass walls and avoiding alcohol with colleagues. “Temptation is always a factor,” said Mauldin, 29.
One reason women stall professionally, research shows, is that people have a tendency to hire, promote and mentor people like themselves. When men avoid solo interactions with women – a catch-up lunch or late night finishing a project – it puts women at a disadvantage.
“If I couldn’t meet with my boss one-on-one, I don’t get that face time to show what I can do to get that next promotion,” said Shannon Healy, 31, a property manager in Houghton, Mich.
Any rule about avoiding meetings that applied only to one sex, even if unspoken, would most likely be illegal, said Peter Rahbar, founder of the Rahbar Group for employment law. Such behaviour is often cited in gender-discrimination lawsuits, he said.
Working with the New York Times, Morning Consult, a polling, media and technology company, surveyed 5,300 registered U.S. voters in May. The survey did not ask about marital status or sexual orientation.
Over all, people thought dinner or drinks with a member of the opposite sex other than a spouse was the most inappropriate, with more people disapproving than approving. Lunch and car rides were less objectionable, but more than one third of people said they were inappropriate.
Fewer than two thirds of respondents said a work meeting alone with a member of the opposite sex was appropriate; 16 per cent of women and 18 per cent of men with postgraduate degrees said it was inappropriate.
Fewer than two thirds of respondents said a work meeting alone with a member of the opposite sex was appropriate; 16 per cent of women and 18 per cent of men with postgraduate degrees said it was inappropriate.
In general, women were slightly more likely to say one-on-one interactions were inappropriate. So were Republicans, people who lived in rural areas, people who lived in the U.S. South or Midwest, people with less than a college education and people who were very religious, particularly evangelical Christians.
Yet, the gender caution reaches across divides – and into many workplaces.
Kathleen Raven, a science writer at Yale, considers herself to be progressive in many ways. But she does not have closed-door or out-of-office meetings alone with men, because she was previously sexually harassed. She also tries to avoid being too friendly to ensure she doesn’t give the wrong impression.
“Women are taught to believe that we are equals while we’re growing up, and that’s not a good message,” said Raven, 34. “We have to make a lot of efforts to protect ourselves.”
Shelby Wilt, 22, of Gilbert, Ariz., said she and her boyfriend socialize alone with friends of the opposite sex. At work, though, it depends on the man. At the restaurant where she used to work, she would ask for conversations with certain men to take place in the kitchen, with others around. “It’s very much an instinctual call,” she said.
If they were older than 65, Republican or very religious, respondents were slightly more likely to say people should take extra precaution around members of the opposite sex at work. They were less likely if they were young, students, not religious or registered as an independent.
“Organizations are so concerned with their legal liabilities, but nobody’s really focused on how to reduce harassment and at the same time teach men and women to have working relationships with the opposite sex,” said Kim Elsesser, author of Sex and the Office: Women, Men and the Sex Partition That’s Dividing the Workplace.
People who follow the practice in their social lives described separate spheres after couplehood. They said they wanted to safeguard against impropriety – or the appearance of it – and to respect marriage and, in some cases, Christian values. That often meant limiting opposite sex adult friendships to their friends’ spouses.
Cindy McCafferty, 60 and Catholic, is single, but said she would do so in a future relationship. “The Sixth Commandment is you don’t commit adultery, and you don’t want to do anything that would jeopardize that,” said McCafferty, a mental health caregiver in Appleton, Wis.
Some people said the behaviour simply did not reflect the world they live in. For Hannah Stackawitz, 30, a health-care consultant in Langhorne, Penn., life without solo meetings with men is unimaginable. “I do it every day, honestly,” she said, as does her husband.
“There’s no way that women or men can become their full and best selves by closing themselves off.”
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