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How big a problem is sexual harassment in your organization?

How big a problem is sexual harassment in your organization?

Yosie Saint-Cyr LLB., Managing Editor, HRinfodesk, published by First Reference, May 2016

Our last January HRinfodesk poll on how big a problem is sexual harassment in an organization revealed that 58 respondents out of 105 (55%) believed it was not a problem at all. 35 respondents (33%) were not aware of a problem while 11 (10%) stated it was somewhat of a problem. Only one respondent stated that it was a big problem.

Workplace sexual harassment is a serious problem in Canada as recently reported in the media countless of times.

Workplace harassment is specifically addressed under human rights legislation in all Canadian provinces and territories including the Canadian Human Rights Act, which governs human rights issues in federally-regulated workplace. Under human rights legislation, sexual harassment is included in the definition of workplace harassment. Sexual harassment is a type of discrimination based on sex/gender.

In addition to human rights legislation, Ontario, Manitoba, British Columbia and Saskatchewan occupational health and safety legislation, and in BC, the Regulations cover workplace harassment as a health and safety issue . In Ontario, effective September 8, 2016, sexual harassment is expressly addressed under workplace harassment under the Occupation Health and Safety Act.

Both human rights and occupational health and safety legislation and regulations require employers to take active steps to prevent workplace harassment including sexual harassment in the workplace. Employers must make every reasonable effort to protect workers from harassment, including sexual harassment in the workplace.

Sexual harassment is a serious issue for the management of any organization because it damages employee morale, impacts careers, and negatively affects the bottom line (legal costs and punitive damages). It also creates high absenteeism, low productivity and employee turnover. In addition, sexual harassment in the workplace has the potential to escalate to violent behaviour.

Although more than the majority can claim that sexual harassment is not a problem in their workplace, the 35 respondents who are not aware of a problem or the 11 who stated it was somewhat of a problem is not a good sign. You should be aware and you should not be stating that it is somewhat a problem at your workplace, by making sure you have a workplace harassment policy and program in place that includes measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. Specifically how incidents or complaints of workplace harassment will be investigated and addressed.

By having a policy and process in place and creating an environment where employees know that these situations are taken seriously and are encouraged to report any issues, will make it easier for you to know when there is a sexual harassment problem in the workplace. Knowing about these issues is the first step in taking the necessary measures to protect workers' health and safety and avoid a poisoned work environment.

Why is it important for employers to be aware?

Employers have a high likelihood of being vicariously liable for the misconduct of an employee. This is especially the case where the person who committed the wrongful acts was the directing mind of the company. Vicarious liability is the term used when organizations are ultimately responsible for an event or property, and are held legally liable for the actions and negligence of their employees and volunteers. Organizations could be vicariously liable for the negligent, intentional or unintentional actions of those operating on their behalf. In other words, the employees' negligent actions will be considered the actions of the organization, and consequently, the organization will be held personally liable if these actions are performed while the employee is in the course of employment. This vicarious liability can even extend to intentional acts of civil wrongs (torts) done by employees or agents of an organization that cause harm to a third party. Such intentional torts include such actions as harassment, assault and battery.

The “organic theory of corporate liability” establishes that an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment. Managers and central decision makers of an organization are a part of the “directing mind.” An employee with only supervisory authority may also be considered a part of the “directing mind” if they function, or are seen to function, as a representative of the organization.

Employers must take reasonable steps to avoid and eliminate their liability by ensuring that clear rules are in place to prohibit or sensitize employees about issues or incidents that may engage their liability.

Employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment. Employers must also, after consulting with affected employees or their representatives, if any, issue a clear, comprehensive anti-sexual harassment policy and train all under the employer's direction about the policy statement.

The policy will inform all parties of their rights, roles and responsibilities. Policies and procedures must clearly set out how the alleged sexual harassment will be dealt with promptly and efficiently.