Redress Risk Management (post until May 31/19)
Employment & Labour, Mediation

‘Weinstein effect’ behind uptick in sexual misconduct complaints

When sexual abuse allegations directed at Hollywood movie producer Harvey Weinstein first came to light in October — leading to a tsunami of complaints against powerful men in film, the news media and politics — it created a “global shift” in workplaces of all kinds, says Toronto employment mediator and arbitrator Barry B. Fisher.

Fisher, principal of Barry Fisher Arbitration & Mediation, tells AdvocateDaily.com that he and his colleagues are already seeing a jump in sexual misconduct complaints that end up in mediation.

“It’s the ‘Weinstein effect,’” he says, referring to the nascent worldwide trend of levelling such accusations against high-profile men. “It takes one very strong person to start the trend, and it’s always easier to follow. I think there’s been a very good educational aspect to it.”

Until recently, “it was often assumed that the woman was lying until she could prove she was telling the truth.” Fisher says, referring to the “doctrine of recent complaint,” an outdated assumption that the complainant may be lying because she didn’t come forward soon after the alleged conduct occurred.

Recent events have caused the pendulum to change direction, he adds.

Fisher points to two “essential” amendments made to Ontario’s Occupational Health and Safety Act (OHSA) that improve the environment for sexual harassment complainants. Contained in the Sexual Violence and Harassment Action Plan Act, which took effect in September 2016, Bill 132 expanded the definition of workplace harassment under the OHSA to include workplace sexual harassment.

But more importantly, he says, s. 32.0.7 of the OHSA was repealed and replaced with a requirement that employers conduct an investigation when faced with a harassment complaint, and provide the results of that investigation in writing to both the complainant and the alleged harasser.

Just as significant, Fisher says, is the addition of s. 55.3(1), which stipulates: “An inspector may in writing order an employer to cause an investigation described in clause 32.0.7(1)(a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.”

Allowing the complainant or the alleged harasser to file a complaint with the Ministry of Labour about the quality of the employer’s investigation “can be a very powerful remedy,” he says, noting that the ministry can “force the employer to hire an outside investigator.”

“It not only enhances the cost considerably, thereby adding negotiating power to the harassed employee, but hopefully will raise the quality of the investigations,” Fisher says, adding that “employers are starting to appreciate that conducting an investigation is a skill set of its own and not something that every foreman and every HR person can do.”

He explains that in harassment cases, a mediation takes place after a lawsuit is filed — more often than not by the alleged harasser after he or she is fired following an allegation. In Ontario, mediation is required only in Toronto, Ottawa and Windsor, and it’s voluntary elsewhere in the province.

In employment law cases, especially those involving harassment allegations, Fisher says the mediator engages in “shuttle diplomacy,” going back and forth between two rooms because “the parties rarely wish to be in the same room. ... It’s just so difficult and painful and, frankly, not productive.”

When conducting a mediation, credibility is “front and centre” in the discussion, he says, and mediators need to have “a good understanding of how courts assess credibility.” Even though it’s not a mediator’s job to determine who’s lying and who’s telling the truth, “it’s certainly their role to assist the parties in understanding how a judge might look at credibility” if the case goes to trial, he says.

“It’s extremely difficult when it comes to credibility,” he says, “given the fact that most of these allegations do not occur in public, so there’s no corroborating evidence.”

There are a few factors to consider when assessing credibility, Fisher says, including whether the complainant told anyone about the alleged incident and whether he or she had any reason to file a complaint. “What motivation did the woman have to lie about the complaint? That’s often one of the most important questions that I can ask in a mediation,” he adds.

Fisher says mediators also need “to be sensitive to the fact that this is one of the most devastating things someone can be accused of. It’s one thing to say, ‘You’re incompetent.’ But to call someone a racist or a sexual harasser is serious stuff.”

In the end, he says, mediations are usually resolved through money. “In a mediation, nobody admits anything, there’s no admission of liability and money changes hands.”

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