Due process vital for claims of workplace sexual harassment
By Linda Barnard, AdvocateDaily.com Contributor
The rapid-fire pace of social media posts around the #MeToo and #TimesUp movements have brought changes around workplace sexual harassment, Toronto employment lawyer and mediator Peter Israel tells AdvocateDaily.com.
“Harassment was not a known legal concept when I started,” Israel, founding partner with employment and labour law boutique Israel Foulon LLP, says in reflecting on his 39-year history in the law profession.
Now it’s a familiar term, but one that can be muddled by social media posts that sometimes confuse sexual harassment with sexual assault, which is a Criminal Code offence, he says.
Since Bill-132 — The Sexual Violence and Harassment Action Plan Act — was passed in 2016, workplace sexual harassment is now a defined term under the Occupational Health and Safety Act, which, among other things, compels employers to have policies and procedures in place with respect to harassment, sexual harassment and violence.
"The Ontario Human Rights Code does not explicitly define sexual harassment, but states that employees have the right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee," Israel says.
While there are no limitations periods for indictable offences in Canada, including sexual assault, in 2016, Bill-132 amended the Ontario Limitations Act to remove all limitation periods for civil claims based on sexual assault, he adds. Prior to these amendments, Israel says there were unclear exceptions to the standard two-year limitation period for sexual assault claims, depending on the relationship between the perpetrator and the victim.
“You can raise situations that happened 15 and 20 years ago,” he says.
Because of public reporting and instant reactions around social media posts, due process is at risk of becoming completely abandoned, says Israel.
An employer's rush to respond to online allegations can be “very dangerous,” he says and the rights of the accused can be overlooked if hasty action is taken in the midst of a public outcry.
“What do you do when you’re a public entity and complaints about your public figure come up? You have to act immediately,” he says.
“If a decision is reached too quickly and without due process, an employer can walk into a wrongful dismissal,” says Israel.
Previously, it was “quite acceptable to respond with a letter or a phone call within two or three days. Now everybody is expecting an answer immediately,” he says.
While the employer has an obligation to investigate and resolve sexual harassment issues, there is no legal remedy, he says. Harassment has to be raised as part of a workplace issue, such as constructive dismissal, damage for emotional distress or another tort.
In mediation, a negotiation with a respondent can lead to a mutually agreed resignation. But mediation can also reveal “there really is no evidence of any wrongdoing,” Israel says.
“Unfortunately that's now lost in the process with a rush to judgment that has horrible consequences for the employer because there are obligations and liability to the person whose reputation has been ruined in terms of defamation and wrongful dismissal and other potential damages,” he says.
To ensure clients are educated, Israel’s firm hosts four breakfast seminars each year to help employers build specific programs for each organization around policy, rules of investigation and how not to rush to judgment.
“In Ontario, we are required to have sexual harassment policies and we teach our employer clients how to put them in place,” says Israel. There are specific rules about how an investigation is to be conducted, from how a complaint is started to how interviews are done and what safeguards are in place to protect all parties, he says.
“You want to slow down the process if you can and make sure that due process is honoured and respect is given to all of the players,” says Israel.
Employers must also determine if their human resources department is equipped to handle the investigation or if a neutral outsider is required.