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Employment & Labour

Building better workplaces free from sexual harassment

In the final instalment of a three-part series, Ottawa employment lawyer Ella Forbes-Chilibeck explores lessons learned from sexual harassment complaints to help employers build better workplace policies and procedures.

A workplace sexual harassment complaint could be a launch pad for developing corporate policies and procedures that improve working conditions and prevent future claims, says Ottawa employment lawyer Ella Forbes-Chilibeck.

Dealing with workplace sexual harassment is "a hard topic to tap dance your way through,” she tells AdvocateDaily.com. “I don't want anyone to think they shouldn't bring a complaint forward — and you have to take them very seriously — but it’s also important that claims aren’t frivolous and vexatious."

The complaint process begins when someone brings an incident to the attention of their manager or another senior person in the organization, says Forbes-Chilibeck, the founder of Forbes-Chilibeck Employment Law, which represents employees and employers in sexual harassment cases and other employment matters.

“That triggers an investigation, either using internal resources or a neutral third-party investigator,” she says. “The results of the inquiry are then brought back to management, which decides what action, if any, should be taken.

“Once a complaint is lodged, employers need to address it — avoiding the issue is never the right response,” she says.

In situations where an internal manager is not the appropriate person to oversee the investigation — such as when there are conflicts of interest — an external specialist can be recruited, says Forbes-Chilibeck, who works as an investigator examining harassment claims.

"When I'm involved, it's usually pretty serious," she says.

In some cases, employers have reached out to Forbes-Chilibeck in the aftermath of an investigation for help developing strategies to stop workplace sexual harassment.

“Company policies are implemented that reflect both the firm's culture and ethics in preventing sexual harassment and enforcing the rules to counter such behaviour,” she says. “It could also require the development of a new workplace environment.”

The foundation of those policies is based on existing legislation, Forbes-Chilibeck explains. In Ontario, for example, workplace sexual harassment is covered by the Ontario Human Rights Commission, the Ontario Occupational Health and Safety Act and the Sexual Violence and Harassment Action Plan Act.

In the wake of an investigation, Forbes-Chilibeck says firms must ask themselves what they could have done to prevent the incident and how they can minimize the chances of it happening again.

"Often, employers don't see it coming, or if they do, they're hoping it will go away," she says.

To be effective, policies should be customized for each workplace, Forbes-Chilibeck adds.

“Having some broad motherhood statements is not particularly valuable unless employees know what they mean and how to apply them," Forbes-Chilibeck says.

For those responsible for developing policies, she says it’s important to recognize what zero tolerance looks like in practice, how a change in workplace culture will be implemented and what remedies can be applied through the policies.

It’s also critical to find the balance between protecting staff from sexual harassment and frivolous, vexatious complaints, Forbes-Chilibeck says.

"How are we going to make sure we are in not in any way silencing people who should be bringing complaints forward?" she asks.

Forbes-Chilibeck says the key to “prevent and protect” is to have meaningful policies and procedures that are woven into the workplace setting to such a degree that employees are empowered to “call out sexual harassment” when they experience or witness it.

"It’s about creating a culture where everybody is free to identify what is appropriate, what they're comfortable with and what they’re not,” she says.

Part of the education process should include a primer on what’s appropriate with respect to compliments, jokes and sharing images, Forbes-Chilibeck says.

“I see it in surprising spots, typically in places where there is a great deal of power or not many women," she says.

Forbes-Chilibeck recalls a male-dominated workplace where the lone female employee was sexually harassed and treated like a "little girl" by those who tried to protect her.

"It was unbelievable for her and truly quite shocking," she says. "It really affected her health. At one point there was a five-foot phallic symbol drawn on the back of the bathroom door.”

Even the employees who wanted to help the woman struggled because they needed better “education and training,” Forbes-Chilibeck says.

"You don't necessarily consider your own biases until you are pushed to it," she says. "It's not necessarily a comfortable situation for anybody and, in my experience, most people don't like anyone suggesting they might be acting in a way that’s unfair."

Click here to read part one in the series where Forbes-Chilibeck discusses key considerations for employers when dealing with complaints of sexual harassment.

Click here to read part two, where she offers guidance to employers on how to conduct workplace investigations.

To Read More Ella Forbes-Chilibeck Posts Click Here
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