Employment & Labour

Smart policy development may encourage reporting

By Kirsten McMahon, Associate Editor

One of the difficulties employers face with respect to mitigating the risks of sexual misconduct in the workplace are the barriers to the offending behaviours being reported, Markham, Ont.-based employment lawyer Laura Williams tells a Globe and Mail roundtable.

Williams, founder and principal of Williams HR Law and Williams HR Consulting, was one of five lawyers participating in #AfterMeToo: Civil law and sexual misconduct in Canada. The hour-long roundtable, hosted by the Globe’s Simon Houpt, analyzed and discussed a fictitious scenario and made recommendations for positive change around workplace sexual harassment and gender-based violence in the film and television industry.

The case study revolved around a 20-year old black Canadian actor playing a lead role in her first film. During the shoot, the producer made lewd comments on set, walked into her trailer while she was dressing, and touched her inappropriately.

During the film’s premiere, she was asked to meet with the producer in a hotel suite, where he mentioned a film role he wanted her to have. He then propositioned her and engaged in a sexual act before leaving the room.

The woman told her agent, who said the producer was known to be a "pervert" and advised her to focus on all of the positive things taking shape in her career. The actor also reported the incident to an officer of the local branch of her union.

She was asked if she wanted to file a grievance, but she told the officer she didn't know what that entailed. He said he would get back to her and two months later, the officer called to tell her that the producer would apologize but she would have to execute a confidentiality agreement.

She didn't know what her other options were so she agreed. Two days later when the officers were on the line, the producer said he was sorry if he had made her uncomfortable.

The film received excellent reviews, as did her performance, but she was never asked to audition for any of the producer’s roles again. Few other offers came in and her agency and management told her she had acquired a difficult reputation.

Williams, who has worked with clients in the music industry, says there is a similar reluctance in the film and television business to overly regulate by way of policy or infrastructure that would somehow stymie the creative process to carry a project forward.

“My experience has been, when being engaged in the creative industry, if you are creating any policies that would mitigate risks similar to those that are present in this case study, there's a general direction to have the policies be very light and not too rigid,” she says.

It’s important to remember that this type of behaviour is regulated in the health and safety framework.

“If you do leverage the key underpinning of the internal responsibility system that underlies the health and safety framework, you can encourage the reporting of inappropriate behaviours by virtue of the duties that both employers and employees have to mitigate risk,” Williams says.

She says another barrier to reporting is that nobody wants to blow the whistle on the rainmaker or leader.

“Smart policy development in this area provides an external mechanism, perhaps anonymous or otherwise, for bystanders or others to blow the whistle on the leader,” Williams says.

From a cultural perspective, there can be pushback when introducing policies and conduct expectations that can mitigate against sexual misconduct in the workplace, she says. But for those who are providing information to organizations, it’s important to leverage the current climate.

“There is heightened awareness,” Williams says. “Organizations — even if they don't connect to the fact that they should have good strategies in place as it relates to people management — do take note of the impact on their brand and the steep costs associated with managing harassment-related litigation or penalties.

“The attention is there on the topic and now is the time to start talking about culture change,” she adds.

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