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The #metoo moment

The recent #MeToo social media campaign, initiated by actress Alyssa MIlano, is a long overdue and welcome development, liberating women to express their experiences and to demand better treatment.

#MeTooThe sudden fall from grace of film producer Harvey Weinstein, over sexual harassment allegations, has proven to be the first rock in a landslide; in the weeks since, women everywhere have begun to voice complaints about past and ongoing instances of unwelcome sexual attention.

This avalanche has happened principally in social media, with millions of people declaring #MeToo – meaning that they, too, have been subjected to harassment. Most of that harassment has happened, they say, at work.

Initiated by actress Alyssa Milano, the social media campaign has made “Me Too” a rallying cry around the world. Millions of women (and some men) have come forward on social media to tell their stories of sexual assault and sexual harassment with the hashtag “#MeToo” in order to show the magnitude of the problem. A staggering amount of those stories described workplace harassment.

If the most recent BBC survey reflects norms in western society, then 50 percent of women in workplaces have experienced some form of sexual harassment. Indeed, more than one wag on social media has asked “what woman has NOT been subjected to sexual harassment?” It is a fair question.

Even if somehow the answer is “only fifty percent”, that is an ugly indictment of traditional workplace cultures. And it will take only a fragment of those cases to inundate organizations with complaints about past and present abuse.

This #MeToo moment is a long overdue and welcome development, liberating women to express their experiences and to demand better treatment. This places a powerful obligation on men to reflect on their behaviours, intentional or inadvertent, and how they may have affected the women around them.

A wide range of workplace laws apply to sexual harassment in Canada. Ontario’s Human Rights Code and Occupational Health and Safety Act, for example, specifically identify sexual harassment as illegal conduct. Federal employment law requires organizations to have anti-harassment programs. The Common Law has been interpreted to view harassment – instances or a course of unwelcome treatment – as a breach of implicit contractual terms.

The law in every Canadian jurisdiction is that people are entitled to work without experience or fear of harassment. That includes having every opportunity to perform and succeed in the workplace, without unwelcome attention or differential treatment, based on one’s gender. The reality, of course, is often different.

Sexual harassment complaints typically surface where a person has suffered an unbearable level of stress and “breaks” – becoming fed-up, sick or simply quitting. These cases hit employers in the form of internal complaints, external human rights complaints and if the person has left, as constructive dismissal claims (constructive dismissal in this context, is the allegation that the job has effectively been denied to a person, because the work environment makes it impossible to remain).

Women are signaling that they will not tolerate this anymore. In this rapidly evolving “Me Too moment.” Organizations need to choose a strategy and to marshal the necessary resources to address the problem:

  1. Do you take the initiative to seek reports from people, or wait for what may come in?
  2. Do people know how to report?  Who will receive complaints?
  3. What about “outside” complaints – social media posts by or about your employees?
  4. What tools do managers or HR have to interact with complainants?
  5. What rules are in place to protect complainants from retaliation? How well understood are they?
  6. What processes are in place to investigate fairly?
  7. If someone is guilty of inappropriate conduct, what level of response is warranted? What outcomes are available, to deliver a proportional response?
  8. If someone is not guilty, or if a case is judged less severe than the complainant’s view, how is that managed to be respectful for all concerned?
  9. What kind of preventive educational efforts, can an employer undertake, to get people to reflect upon and to change their behaviour? That, ultimately, is key.

These cases of course pose risks, but they also pose opportunities. If half of women, or even a quarter of them, have real experience with sexual harassment at work, then virtually every workplace suffers from sexual harassment or has done in the past. We can and should presume sexual harassment is happening in our workplaces. Most organizations are far better off dealing with that today, rather than waiting for it to blow up into something more painful, damaging and costly.

In preparing for this, organizations should be mindful of these issues:

  • Empowerment: as openness about the problem is rapidly “normalized” more women will feel emboldened and empowered to make a complaint.  Organizations and HR professionals have to be prepared to deal with a higher volume of reports.
  • Responsiveness:  that influx of reports, coming as it does from women who are no longer prepared to remain silent, will demand an early and respectful response from employers. In the most basic terms, this means organizations need to have a policy about “respect in the workplace” and a procedure to process complaints fairly.
  • A balanced response: organizations struggle with finding a balance between accepting and honouring a woman’s complaint, while treating “the accused” with a presumption of innocence, all while not rushing to judgment either way. This demands due process, consistently applied in all cases.
  • The power imbalance: inevitably, some (many) complaints will be from women about a male workplace superior. To make such a report is a brave step for a woman, who does not wish to be labelled a complainer and who does not wish to be punished. In human rights law, there is “an onus shift” – a burden placed on the accused, to rebut the presumption that the complained-of conduct occurred and was wrong. Such an onus shift is necessary, in our own private analyses of cases, in order to be fair to the complainant and to satisfy legal expectations. A judge will not look favourably on an employer’s investigation which does not stretch itself to show sympathy and respect for a complainant.
  • Resources: organizations need to equip frontline managers to receive reports with appropriate discretion, feeding complaints over to HR departments. Companies may also have to rely more heavily on external investigators.
  • Inviting reports: although the idea of asking people to complain may seem counter-intuitive, the fact is that harassment which goes unreported is a far greater problem than a complaint. If we learn of a problem – even if it doesn’t rise to the level of misconduct warranting the term “harassment”, we can deal with it. If we don’t know about it, it can only get worse.

Further, the very fact of silence augers ill for an organization: people keep secrets because they are afraid of the truth. They are afraid because they believe that the organization will protect and reward people who behave badly. This is the perfect environment to cultivate bad – and worse – behaviour.

  • Language and proportionality: many women desist from voicing a complaint for fear of over-stating the gravity of the misconduct (they don’t want to destroy a man for isolated instances of bad behaviour). One issue is whether organizational policy can find a way to invite and welcome openness from complainants, without triggering an invasive, expensive and damaging investigation that might be even more damaging than the initial misconduct.
  • Social media reporting: the new wave of social media activism appears to be shifting the way we think and talk about issues that were once considered taboo or inevitable. As people begin to speak more openly about this, employers should expect “#MeToo” complaints, old and new, to surface – not only in the workplace, but on their employees’ social media accounts. This does not mean employers have a duty to review their employees’ social media accounts. In fact, there are privacy and human right concerns in conducting such checks. However, if an employer becomes indirectly aware of a workplace sexual harassment complaint made on social media, it has a duty to address the complaint and ensure that the workplace is free from sexual harassment and violence.
  • The question of right and wrong: aside from the manifest legal issues and costs, there is a moral issue at stake. It is simply wrong to expect women to experience, absorb and carry with them the insult, grief, rage and injury associated with sexual harassment. We must stop it.

While harassment remains largely a complaint-driven issue in workplaces, recent events and the Me Too movement raise the question of whether organizations have to be more pro-active. No-one relishes the prospect of unearthing problems, but a passive method of waiting for complaints, nourishes bad behaviour and suppresses valid reports. To borrow a famous phrase: “silence encourages the tormenter, never the tormented.”

Most women say they have experienced some form of sexual harassment at work. It is not possible to measure the misery they have endured but we can imagine the cost if it continues. Each woman who says “Me Too” may be telling her employer about a potential law suit. The longer we permit the wrong to exist, the more costly and painful it will be to make it right.

By David Law, Partner, Gowling WLG

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