These are good articles about sexual harassment in the workplace. You may be angry, depressed, and in a bad mood after reading this:
https://www.theglobeandmail.com/report-on-business/careers/leadership-lab/what-counts-as-workplace-sexual-harassment-in-canada/article37137194/
Jun. 5, 2020: There are 45 comments.
Dec. 1, 2017 "What counts as workplace harassment in Canada?": Today I found this article by Daniel Lublin in the Globe and Mail:
The threat of negative media exposure is causing many companies to rewrite their workplace sexual-harassment policies, making them zero-tolerance.
The definition outlined by the Supreme Court of Canada is broad, and deliberately so
In the wake of the Harvey Weinstein story, a successful workplace sexual-harassment claim in Canada would not be worth any more money than before, although the claims certainly appear more plentiful now.
The real substantive legal change, however, is that the very boundaries of sexual harassment may be expanding, along with the public’s interest in these claims. What are those boundaries and when does workplace sexual harassment arise?
In the leading decision of the Supreme Court of Canada, workplace sexual harassment was defined as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”
This is an extremely broad definition and deliberately so. Virtually any form of behaviour can amount to sexual harassment, provided that it is sexualized in nature and unwelcome.
In that same case, the Supreme Court explained that workplace sexual harassment could take on a variety of different forms and that employees need not suffer an identifiable economic loss, such as termination, in order to be a victim.
In that same case, the Supreme Court explained that workplace sexual harassment could take on a variety of different forms and that employees need not suffer an identifiable economic loss, such as termination, in order to be a victim.
A CONNECTION TO THE WORKPLACE
For sexual harassment to amount to workplace sexual harassment, there must be a connection to the workplace. However, this is now mostly a superficial qualification. Few workplaces still have traditional borders.
If two co-workers agree to go for dinner after work and an incident occurs, the fact this incident was after hours and away from the workplace is ultimately of little legal relevance.
Similarly, a co-worker who sends unwelcome and suggestive text messages to another on a weekend is not immune from a workplace harassment claim and neither is the employer. In either scenario, once an employer is made aware of a complaint, it is required to investigate and ensure that the workplace, broadly defined, is free from harassment.
This is the main objective of workplace sexual harassment laws – employers are made responsible to govern the conduct of their employees, including conduct that technically arises outside of the office.
In one of my first human-rights cases, I was consulted by a woman who had a sexual relationship with her boss. The problem was that, once the relationship ended, her boss began a very subtle campaign of retaliation. He criticized my client at meetings, gave her more difficult tasks and he made sure to tell others that the quality of my client’s work was lacking.
To an untrained eye, it could be hard to spot sexual harassment. Both their relationship and their breakup were completely consensual. But this was a classic case. Why?
Treating a work colleague poorly because he or she won’t have sex with you is just as bad as demanding that a colleague have sex with you.
If two co-workers agree to go for dinner after work and an incident occurs, the fact this incident was after hours and away from the workplace is ultimately of little legal relevance.
Similarly, a co-worker who sends unwelcome and suggestive text messages to another on a weekend is not immune from a workplace harassment claim and neither is the employer. In either scenario, once an employer is made aware of a complaint, it is required to investigate and ensure that the workplace, broadly defined, is free from harassment.
This is the main objective of workplace sexual harassment laws – employers are made responsible to govern the conduct of their employees, including conduct that technically arises outside of the office.
In one of my first human-rights cases, I was consulted by a woman who had a sexual relationship with her boss. The problem was that, once the relationship ended, her boss began a very subtle campaign of retaliation. He criticized my client at meetings, gave her more difficult tasks and he made sure to tell others that the quality of my client’s work was lacking.
To an untrained eye, it could be hard to spot sexual harassment. Both their relationship and their breakup were completely consensual. But this was a classic case. Why?
Treating a work colleague poorly because he or she won’t have sex with you is just as bad as demanding that a colleague have sex with you.
A ‘COURSE’ OF CONDUCT
Once upon a time, there was a debate about whether workplace sexual harassment required a recurring pattern of behaviour or a series of incidents in order to make out a successful claim. But now, a majority of the human-rights complaints I field concern only a single incident of unwanted behaviour.
An unwelcome comment, a hug, an inappropriate remark or even gawking could, in certain circumstances, lead to a successful human-rights claim. Although human-rights tribunals assess the quantum of damages based on the seriousness of the misconduct, there are countless nominal human rights awards where tribunals take the opportunity to set an example of how not to behave in the workplace.
An unwelcome comment, a hug, an inappropriate remark or even gawking could, in certain circumstances, lead to a successful human-rights claim. Although human-rights tribunals assess the quantum of damages based on the seriousness of the misconduct, there are countless nominal human rights awards where tribunals take the opportunity to set an example of how not to behave in the workplace.
CHANGING LEGISLATION
The federal government has proposed new legislation, which if passed, will impose heightened obligations on federally regulated employers (banks, airlines, radio and television) to investigate complaints of workplace sexual harassment.
If these employers fail to do so, they could be fined or publicly named, which would represent the first time that any Canadian statute would specifically seek to expose corporations who do not take their human-rights obligations seriously.
If these employers fail to do so, they could be fined or publicly named, which would represent the first time that any Canadian statute would specifically seek to expose corporations who do not take their human-rights obligations seriously.
CHANGING PERSPECTIVES
In the past several months, there has been a seismic shift in how the public views sexual harassment such that complainants are viewed far more credibly than ever before. In this context, it can be difficult for the public, and even some judges, not to become predisposed to side with alleged victims.
The threat of negative media exposure is causing many companies to rewrite their workplace sexual-harassment policies, making them zero-tolerance. In some cases, employers are considering banning office relationships altogether, especially between subordinates and managers. Although this can be difficult for employers to police, they may be far less vulnerable to liability if their policies forbid workplace relationships from the outset.
The threat of negative media exposure is causing many companies to rewrite their workplace sexual-harassment policies, making them zero-tolerance. In some cases, employers are considering banning office relationships altogether, especially between subordinates and managers. Although this can be difficult for employers to police, they may be far less vulnerable to liability if their policies forbid workplace relationships from the outset.
https://www.theglobeandmail.com/report-on-business/careers/leadership-lab/what-counts-as-workplace-sexual-harassment-in-canada/article37137194/
Jun. 5, 2020: There are 45 comments.
"How should we respond to sexual misconduct?": Today I found this article by Amanda Taub in the Globe and Mail:
As accusations of sexual misconduct against famous men accumulate, the sheer quantity of dispiriting news is starting to create a confusing blur. The task of responding to sexual harassment and assault feels simultaneously more urgent and more daunting than ever.
Society is out of practice at this task; the same culture of silence that protected harassers also suppressed the public response to their crimes. Many people struggle even to know which questions to ask and worry that if they ask the wrong ones, they might become part of the problem.
There is a temptation to simplify matters by viewing all harassers and their offences as equally awful or, alternatively, as equally misunderstood. But to be fair and effective, any system needs to make distinctions: to sort Harvey Weinstein from Roy Moore; and Louis C. K. and Matt Lauer from Al Franken.
The United States’ legal system, while quite different from the court of public opinion, offers principles and reasoning that we can use to evaluate each case as it flares.
SLIPPERY SLOPES AND CONSEQUENCES
Until recently, all of those accused, no matter the severity of their offences, faced the same consequences: generally none. Protected by their power and authority, they kept their careers and reputations intact.
As that begins to change, some worry we might bungle the job. “Taking harassment seriously also requires making serious distinctions,” Jonah Goldberg, a conservative columnist, wrote recently for The Los Angeles Times. “And yet Franken’s name is routinely listed alongside Moore’s and Weinstein’s.”
Masha Gessen, writing in The New Yorker, worried we may be on the verge of a “sex panic.” Jane Curtin, a comedian who is a friend and former colleague of Mr. Franken’s, compared the current atmosphere to McCarthyism. “It’s just like the red menace,” she said in an interview. “You don’t know who’s going to be next.”
Many of those accused have lost their jobs, but for the most part, they are not facing legal consequences. Yet, principles borrowed for criminal law can help us analyze whether our response to their actions is just and fair.
Criminal punishment tends to rest on two broad principles:
the seriousness of the wrongdoing
and the perpetrator’s intent in committing the crime.
the seriousness of the wrongdoing
and the perpetrator’s intent in committing the crime.
Viewed through that lens, the accusations against Mr. Weinstein, which include rape, and Mr. Moore, who is accused of molesting teenage girls, are clearer- cut cases for punishment than those against, say, Louis C. K., who masturbated in front of adult women but did not touch them.
It’s also important that courts do not consider only the moment of the crime itself in determining punishment. Our system also punishes defendants who threaten witnesses or obstruct justice, as well as others who help them do so.
Here again, the accusations against Mr. Weinstein are especially extreme. According to a report by Ronan Farrow in The New Yorker, he hired ex- Israeli intelligence agents to intimidate victims and journalists into silence.
Here again, the accusations against Mr. Weinstein are especially extreme. According to a report by Ronan Farrow in The New Yorker, he hired ex- Israeli intelligence agents to intimidate victims and journalists into silence.
Dana Min Goodman and Julia Wolov, two of the women who have accused Louis C. K. of misconduct, have said they stayed silent for years in part because of pressure from Dave Becky, Louis C. K.’ s manager. Mr. Becky has denied threatening them. But the women have said they feared that speaking would bring retribution.
ACCOUNTABILITY FOR HARM
The principles of civil law, which are intended to make victims whole and ensure that no one profits from wrongdoing, can offer useful guidance about what is fair, and what is necessary.
A central principle is that the person at fault, not the victim, should bear the cost of the harms of wrongdoing.
In law school, budding lawyers learn the “eggshell plaintiff” rule, which says defendants are responsible for all of the harm they cause, even if the injuries were made more extreme because, say, the victim’s skull was as thin as an eggshell. Otherwise, the reasoning goes, the costs will fall on the victims – a more unfair outcome than holding perpetrators responsible for unexpectedly severe damages.
In law school, budding lawyers learn the “eggshell plaintiff” rule, which says defendants are responsible for all of the harm they cause, even if the injuries were made more extreme because, say, the victim’s skull was as thin as an eggshell. Otherwise, the reasoning goes, the costs will fall on the victims – a more unfair outcome than holding perpetrators responsible for unexpectedly severe damages.
It is now becoming clear there is not a one- to- one correlation between the objective egregiousness of sexual misconduct and the damage it can cause.
Louis C. K.’ s actions may have been less extreme than Mr. Weinstein’s. But Ms. Goodman and Ms. Wolov have said they felt they could no longer work on projects involving him or his manager – a category that grew to include a large chunk of the comedy industry as Louis C. K.’ s career took off.
And the Emmy- award- winning writer Kater Gordon told the Information that when Matthew Weiner, her boss on the show Mad Men, told her that he “deserved to see her naked,” he undermined her confidence and ambition. ( Mr. Weiner has said that he does not remember making that comment and would not speak that way to a colleague.)
Held up next to the allegations against Mr. Weinstein or Mr. Moore, those words may seem like a misdemeanour. But the harm was nevertheless severe, Ms. Gordon says, because she left the television industry, abandoning a promising career.
Women are often told to grow a “thicker skin” and become less sensitive to harassment. But the eggshell plaintiff rule suggests a different conclusion: The harassers should bear the costs of the harm they impose, even on “thin- skinned” victims.
We must also consider harms that go beyond the immediate victims. Less diverse workplaces offer women fewer opportunities to find mentorship and achieve success; research suggests such workplaces are also less profitable.
Holding particular harassers responsible for harms suffered by an entire industry or gender is difficult; there are too many contributing factors for it to be easy to apportion blame.
Collective harm may be more suited to government- or society- level responses. But again, the harm is there. The question is who ought to bear the cost.
Collective harm may be more suited to government- or society- level responses. But again, the harm is there. The question is who ought to bear the cost.
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