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Defending a lawsuit is not the new black, or: If you stick your head in the sand for six years, the most likely outcome is suffocation

Workplace harassmentYou have probably heard about the recent allegations of sexual assault against a WestJet pilot, and how WestJet failed to properly handle the allegation. Here is a quick summary: a former WestJet flight attendant, Mandalena Lewis, has filed a claim in the B.C. Supreme Court alleging that, after she reported that she was sexually assaulted on a layover in Hawaii in 2010, WestJet did not properly investigate the allegation. In fact, they chose to protect the pilot and eventually fired her for pursuing the matter.

Ms. Lewis states that the only action taken by WestJet at the time was preventing the pilot from flying to Hawaii (where he couldn’t go without being arrested, given the pending charges) and changing Ms. Lewis’ schedule so that they didn’t have to work together.

This from a company that prides itself on how its employers are “owners too” and has made a meal of the collegial and fun working environment. Ms. Lewis’ experience sounds neither collegial nor fun.

After Ms. Lewis filed her claim, a number of other employees came forward. Some had complaints about similar behaviour by the same individual. Now, six years later, WestJet says it is finally taking the concerns “extremely seriously”. As it should. Or rather: as it should have. But this may be a case of too little, too late.

WestJet should have taken Ms. Lewis’ concerns, which she brought forward when the incident occurred in 2010, “very seriously” and acted accordingly at that time. Even if the actions now taken by WestJet are genuine, the fact that it waited until a lawsuit had been filed and the whole thing had been made public, makes the response reek of a desperate attempt to repair PR. It may have missed the opportunity to show, or at least be seen to show, concern for its employees and the workplace culture it is fostering.

It is not a new statistic that women are an increasingly large percentage of the work force. Employers must be careful not only to foster respectful workplaces, but also to have proper procedures in place to deal with issues of harassment, sexual harassment and sexual assault, should they arise. Even if I can’t convince an employer to do this because it is the right thing to do (women who are being sexually assaulted and harassed in the workplace are human beings; that should be more than sufficient reason), it is in an employer’s obvious self–interest to have a proper procedure in place, to follow it, and to be clearly intolerant of this kind of behavior.

There are always things that an employer can do to make an employee who comes forward with this kind of allegation feel safe and valued. Those same things will have the same effect on everyone else in the workplace.

Progressive, courageous unions—including pilots’ unions—have been taking on workplace harassment cases, because it’s the right thing to do.

First of all, it is the law. Human rights legislation and workplace safety legislation require employers to have these type of policies and procedures in place, and to take steps to ensure a harassment–free workplace. There are legal consequences to not complying with these laws. At the very least, an employer has to check the law in its jurisdiction and make sure it is in compliance.

Secondly, even if it’s not for the sake of doing either the right thing, or what is required by law, the PR of it sucks, regardless of the outcome. Defending a lawsuit is not the new black. No one looks good doing it. And, even if you win, the legal fees alone can be astronomical. Furthermore, getting out in front of the PR of a lawsuit is difficult, even when handled with tact. The best thing an employer can do is to get out in front of the whole issue, and make sure its workplace isn’t one where the employee feels there is no option but to sue.

Lastly, a safe, respectful employer will be paid back in spades by their workforce. If you treat your employees well, it will result in a workforce that is loyal and hard–working. They will go the extra mile for you because they are well–treated and respected by their employer. People will work hard for people they like and respect and who treat them with respect. A good workforce will, in turn, lead to good customer service and a better business model.

That brings me back to earlier advice for employers: you should not tolerate any kind of harassment in the workplace, because your employees are human beings. How would you feel if this happened to you or your spouse/mother/sister/daughter? It is the right thing to do. And you know what? I say this not as an employee or as a union–side lawyer, but as a person and a woman who lives and works in this world. Most people do not think this behavior is okay, so let’s make workplaces into spaces that reflect that belief.

By: Alison McEwen

This blog originally appeared on March 30, 2016 in the Labour of Law blog www.labouroflaw.ca, published by the Ottawa law firm of Nelligan O’Brien Payne LLP www.nelligan.ca. © 2016 Nelligan O’Brien Payne.

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