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| Janice Rubin |
At the risk of sounding like a Pollyanna, let me explain why I believe things have changed. I do so from the vantage point of someone who leads a large team of lawyers, lawyers who investigate complaints of sexual harassment across the country, in English and in French, and in every conceivable type of workplace.
Who is calling us?
Over the last two years we have seen an exponential increase in the sexual harassment and violence investigations we do. That increase speaks to a major societal shift, a shift that becomes even more striking when we look at who is calling us and why. We have heard from large iconic employers with thousands of employees; we have heard from employers who work in fields that have historically been dominated by men; we have heard from organizations that have a reputation of not creating the most ideal workplaces for their employees. There have been many days in the last two years when I have hung up the phone and thought, wow, who would have thought this organization would have called us about this issue?
Much of what they are asking us to investigate is serious and complex. For example, in the last couple of years we have investigated cases in which a respondent engaged in multiple acts of sexual harassment and violence against numerous women, a university professor sexually assaulted one of his students, and a homophobic departmental supervisor terrorized and manipulated his employees.
What are clients concerned about?
We now regularly hear from boards of organizations who want to educate themselves on what constitutes sexual harassment. They want to learn how to build internal mechanisms that respond to the problem and how to judge whether a policy is effective. No longer is sexual harassment an issue for management to resolve on its own. These boards now understand that in a post #MeToo world, there will be many cases in which the ultimate responsibility for dealing with sexual harassment resides with them.
They have learned a key lesson from the past two years: namely, that allegations of sexual harassment can compromise the reputation of an organization like nothing else, even when those allegations have yet to be proven. Equally compromising are allegations that the boards knew about the behaviour and did nothing to stop it.
Can complainant’s career progress remain unimpeded?
When I was a young lawyer, I dealt with both sides of the issue. I represented women who had been sexually harassed at work as well as advised employers how to respond to sexual harassment complaints. What emerged from these interactions was a predictable default position: The organization would assume the claims were valid, assign an economic value to them and then negotiate a “graceful exit” for the complainant. This was just the cost of doing business. Rarely did the person accused leave the organization. The status quo remained intact, and the bad behaviour was never addressed; it was swept under the rug.
Now a neutral investigator, I am no longer privy to these types of negotiations. But sometimes I am told about the results of an investigation after it is finished. Increasingly, respondents who have engaged in sexual harassment are made to leave the organization. The organization concludes that their behaviour is inconsistent with the employment relationship continuing and creates a liability that is too dangerous to assume. Greater emphasis is put upon ensuring that the complainant’s career with the company and progress through its ranks continue unimpeded.
Why wait for the complaint?
Most victims of sexual harassment will never complain to their employer even if the best of policies and internal mechanisms are in place. There is too much at stake. They fear — often with good reason — that the cost of complaining will be too high. They might not be believed; they might lose their job; they might create an uncomfortable public situation that could have been handled in private. What we have learned time and time again is that if employers are waiting to learn about sexual harassment through complaints, they will be waiting a long time. More often than not, the complaints never come. Indeed, as I have found myself repeatedly saying to clients over the last two years, just because you are not hearing about it does not mean it is not there.
The frightened silence of many employees means that if employers really want to know what is going on, they are going to have to ask. We do this work for our clients by engaging in an assessment process that provides participants the comfort of anonymity, and allows us, through personal interviews and general surveys, to do a deep dive into their experiences at work. We are then able to provide our clients with a picture of what is going on beneath the surface, a picture that often brings to light significant problems they were unaware of.
Now what?
Whether or not the needle on the dial has moved, we have not yet solved the problem of sexual harassment in our organizations. Two years of #MeToo is not enough time to remedy behaviour that is thoroughly embedded in our workplaces and the culture at large.
I hope that the current momentum will allow us to look deeper into other aspects of this problem that deserve our attention: How do we effectively tackle the systemic issues that beset us? How do we address sexual harassment that occurs at the intersection of one or more factors such as race, sexual orientation, disability and gender identification? How do we meaningfully protect complainants from reprisal? What is a fair process and how can it be respectful and sensitive to the interests of all participants?
As I said on the panel two weeks ago, I am cautiously optimistic that we are beginning to tackle the problem of workplace sexual harassment. I do not think we are going back to a pre-#MeToo world.
Janice Rubin is an employment lawyer who is the co-managing partner of Rubin Thomlinson LLP, a Toronto law firm that conducts workplace investigations, assessments and training across the country.
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