Despite #MeToo, workplace sexual harassment persists: Ray-Ellis
By Kathy Rumleski, AdvocateDaily.com Contributor
Though the #MeToo movement raised awareness around sexual harassment and violence, women have gained little ground when it comes to these issues in the workplace, says Toronto employment lawyer Soma Ray-Ellis.
“It’s shocking that it continues to happen,” she tells AdvocateDaily.com.
“After the social media movement empowered women, there has been a greater awareness of these issues. Unfortunately, there has also been a backlash,” says Ray-Ellis, partner and chair of the employment and labour law group with Gardiner Roberts LLP.
Her experience is backed up by two recent studies, outlined in an article in The National Post. The studies found that women are four times more likely than men to experience sexual assault or unwanted touching on the job.
“The current U.S. political scene is having an impact on social mores and the benchmark for what is acceptable behaviour,” Ray-Ellis says.
She says education about employees’ rights is a vital step in the effort to eliminate violence and harassment.
“People don’t always understand that what they are experiencing with respect to harassment is illegal or what recourse is available to them,” says Ray-Ellis.
As well, she says some Ontario employers do not realize that they are required to have an anti-violence and harassment policy and train their workers about the protocol.
“If you have five or more employees you must have a policy, and annual training for those workers is mandatory,” says Ray-Ellis, who frequently provides training to businesses and conducts investigations if there is a violation of the policy.
“I have represented both employees and management during investigations,” she says.
Employees have some options when it comes to filing a complaint, Ray-Ellis says.
A unionized worker would take action through their union, she says.
Non-unionized workers could speak with their human resources department or contact the Ontario Ministry of Labour, as protection against violence and harassment comes from the Occupational Health and Safety Act, Ray-Ellis says.
In some cases, a complaint could be filed with the Ontario Human Rights Commission, she adds.
If the harassment or bullying leads to an injury, the Workplace Safety and Insurance Board may be involved, Ray-Ellis says.
If an employee has filed a complaint against a co-worker with respect to sexual violence or assault, she says the company should accommodate that person, so they don’t have to work with the accused until all the evidence has been gathered and the investigation is completed.
“It’s vital to get counsel and make sure everyone’s rights are protected,” Ray-Ellis stresses.
Depending on the nature of the offence, she says, there could also be protection under the Criminal Code, in which case the police should be contacted.
Ray-Ellis says that when an employee is experiencing violence, he or she needs to be protected and their safety ensured, but that is not always the case in her experience.
She recalls being contacted by a human resources manager who informed her that the head of the company had been having an affair with his assistant.
“When the assistant ended it, her boss assaulted her and left her locked in an office,” Ray-Ellis recounts.
The HR manager sought counsel from Ray-Ellis.
“I enquired if the employee was still locked in the office and she was. The first order of business is always safety,” she says. “I advised the manager to get that employee out of that office, tend to her well-being and then contact police. Sometimes when individuals are in shock, they forget the first principles of dealing with a situation.”
Harassment can sometimes lead to violence, so it’s critical to document everything and then speak to the appropriate person to file a complaint, Ray-Ellis says.
“Keep a record of any interactions, providing as much detail as possible, including any physical evidence you might have,” she says.
Ray-Ellis says once a workplace investigation begins, it can be a difficult process for everyone involved.
“It’s sometimes challenging to navigate, and you want to make sure you don’t do anything improper during the process. Seeking counsel is always the best approach,” she says.
After the investigation is complete, the complainant has a right to see the results and to know what action has been taken against the perpetrator, Ray-Ellis says.
In some cases, it may be impossible for the complainant to continue working in their environment, she says.
“At that time, they need to talk to an employment lawyer and work towards a severance package,” Ray-Ellis says.