Welcome to Motion—Discussing what matters, a video series covering hot topics across the country where our experienced lawyers provide timely legal analysis on issues relevant to Canadians.
This episode focuses on workplace policies in light of the #MeToo movement, one year after it was set in motion, and features our employment and labour partner Lisa Cabel.
In this video, we examine whether the policies and training in place by employers are suitable and address the potential business and reputational risks for clients.
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1. What are employers grappling with in the wake of #MeToo?
Well to really frame the question of what employers are grappling with in the aftermath of the #Metoo, we’re talking about complaints of a nature of sexual harassment and sexual assault in the workplace. And from what I've seen in my practice, employers typically will have the policies and procedures in place, our legal framework has already established those requirements through the Ontario Occupational Health and Safety Act. We've seen a requirement to establish policies that deal with those procedures definitions of sexual harassment definitions for the procedures around investigation but I think really what is at issue now is that employers are no longer likely to maybe sweep complaints under the rug. They want to ensure that the those that are tasked with dealing with that are dealing with it in a formal way and in a way that is done properly in accordance with the law.
2. Are the policies and training developed by employers sufficient and suitable?
I do think most employers will have policies and procedures that are sufficient and suitable mainly because the legal framework over the last number of years has really dictated the content that needs to go into policies and procedures. Certainly it's a good idea to look into it again but where I see the bigger risk is for those individuals conducting the investigations. We've seen more traction in the case law about the manner of investigations and the standard applied. And as a result of that, there's risk to those internally within the company as potentially being named in a human rights complaint relating to the investigation. So as a result I’ve seen more training associated with those investigation procedures or perhaps even bringing in third parties to do the investigation and then transferring the liability that way.
3. How significant an issue is business and reputational risk for clients?
The business and reputational risk for clients is quite significant. If a complaint is made internally and then somehow ends up in social media, the real risk is here is that whatever is being communicated is assumed to be a reflection of the culture of the organization. So it's a good idea for the board an organization generally to have in place a crisis management policy or a public relations strategy in order to be able to respond and ensure that the right message is being sent out that's a real reflection of what the organization is. At the same time of course we have to keep in mind that the investigation needs to go forward and it needs to proceed in a way that's consistent with the investigation procedures for the organization as well as happen in a manner that’s fair and reasonable for all of the parties involved.