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Employment & Labour

Employers should foster workplaces that encourage reporting

There can be many reasons why an employee fails to report sexual harassment in the workplace, but employers must take a strong stance and proactively identify problematic behaviours, says Ottawa employment lawyer Ella Forbes-Chilibeck.

“What I see over and over again is blatant and continuous harassment in the workplace that's overlooked or condoned,” she tells AdvocateDaily.com. “I'm stunned sometimes at how ill-informed people are in terms of what constitutes sexual harassment and how to deal with it appropriately.”

A recent U.K. study of more than 4,000 women between the ages of 16-30 revealed that 15 per cent of those polled had experienced sexual harassment at work and didn't report it.

“It revealed that a third of women don't know how to report sexual harassment if it occurs at work and [one-fifth] state that they are too afraid to complain,” the Independent reports. “Furthermore, 24 per cent of women fear being fired if they speak openly about being a victim of sexual harassment at work.”

Forbes-Chilibeck, the founder of Forbes-Chilibeck Employment Law, suspects those statistics could be similar or even higher in Canada.

Under Ontario’s Occupational Health and Safety Act employers are required to develop and maintain a sexual harassment policy, which should be posted in a visible spot in the workplace. 

“That requirement has been in place since 2009, but there are still employers that don't realize it until they have a complaint brought against them,” she says. “What I sometimes see is that the policy is posted in an awkward place, like across from the boss’s office, where people don’t feel comfortable flipping through the resources.

"Policies should be posted thoughtfully, in a way that's actually going to result in people accessing the information without outing them,” Forbes-Chilibeck adds.

Employers must take a strong position when they see or are made aware of sexual harassment in the workplace, she says, whether it’s groping, leering or inappropriate workplace communication, these behaviours should be carefully and clearly defined and dealt with quickly and appropriately.

“My sense is — and I don't want to sound naïve or in any way suggest I'm condoning it — there is a fairly significant group of sexual harassers who think that what they're doing is charming and friendly,” Forbes-Chilibeck says. “They're surprised, shocked and often embarrassed if they’re called out on their behaviour.

"The most common refrain someone typically provides when they are accused of harassment is, 'But I was only joking.' Everyone has their own unique humour, but it may not be welcome in the workplace. It may very well be harassment."

While some employees may fail to report because they don’t know how to or are unsure of what constitutes harassing behaviour, another reason is fear of reprisal, she says.

“Employees are very concerned about being openly fired, having their careers stall out or being marginalized for speaking up. People are aware that reporting sexual harassment in some cases it can be a career-limiting experience,” Forbes-Chilibeck says.

“I have seen botched investigations where what should have been fairly straightforward results in somebody’s career path being limited or their employment terminated — either the respondent or the complainant.”

She says employers should not enter into harassment complaints lightly and must apply the legislation in a "protective fashion."  

“You want it to be a shield rather than a sword,” Forbes-Chilibeck says.

At the same time, employers must recognize how much courage it takes to come forward with a complaint of sexual harassment in the workplace, she says.

“For an employee to bring forward a complaint only to be tossed around in an investigative process that may or may not be properly administered — they are placing a large amount of trust in a system that may be quite flawed. That’s very worrisome,” Forbes-Chilibeck says.

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