By Muneeza Sheikh
Employers in Canada are not prepared to deal with sexualized allegations in the workplace, writes employment lawyer Muneeza Sheikh.
Much of my practice as an employment lawyer deals with harassment in the workplace. Some of those cases involve sexual harassment of employees, and a smaller subset deal with sexual abuse of employees. Almost all of those cases, with the rarest of exceptions, involve women.
Preparing these claims can be triggering, as I am the victim of sexual abuse myself. I imagine there is a grim liberation for our clients as they watch those responsible for terrorizing them brought to justice. I was a young lady when my abuser died, so I was robbed of that opportunity.
In representing some of the most high-profile sexual abuse and harassment cases in the country, we have learned a great deal of what employers are doing wrong. Our frame of reference is our practice.
Employers in Canada are not prepared to deal with sexualized allegations in the workplace.
As a starting point employers must understand that standard protocols around how to remedy misconduct rarely provide any assistance when you are dealing with harassment or abuse of a sexualized nature.
Employers need to get trauma informed. Following sexual harassment or assault, victims report that they sometimes regress to denial and try to “move on” for a period of time. Others spend a great deal of time trying to understand whether or not they were actually abused or harassed. There are a slew of reasons that explain why it might take time to report these allegations. Employers should listen to all of them before making any hasty findings on timeliness. Employees cannot be attacked for failing to report sexualized misconduct in a timely manner. I only came forward with my abuse at the age of 35, despite the abuse taking place when I was a very young girl. What we know about due diligence in reporting misconduct does not apply to sexualized allegations.
In trying to understand how to move forward, employers must look at who the alleged perpetrator is — when the harassment comes from the mothership, there is almost always the fear of reprisal (i.e. being fired). This impacts when and how the abuse or harassment is eventually reported. When it takes place at the lower ranks, employers should consider how widespread the behaviour or knowledge of the behaviour is. Is it possible to maintain confidentiality? What can employers do to correct the view that they have possibly condoned the harassment or abuse?
The steps taken in the immediate aftermath of learning of the abuse or harassment are critical. The correct handling of the crisis could help the victim(s), eliminate further incidents, and importantly — it could insulate employers from liability.
The investigation is the next critical step. We find that sloppy investigations almost always lead to an employer’s downfall. While it is important to move quickly, you must ensure that the manner in which you investigate fully appreciates the delicate nature of the incident. Mishandling an investigation can have devastating impacts on both the victim and the workplace overall. If like most employers you are not an expert in investigating sexual harassment or assault, take steps to find someone who is an expert — there are many third-parties that specialize in this area. It also sends a clear message to employees that you are taking the incident seriously.
Employers have an incredibly heavy burden to discharge when there is abuse or harassment that takes place on their watch. Employees (particularly when they are in subordinate positions) will often turn to their employers to ascertain next steps on “where to go from here” after they report abuse or harassment. Employers should always suggest where the incident involves abuse/assault (and sometimes it is unclear) third-party involvement, possibly a criminal lawyer. Where charges ensue, employers should always co-operate while trying to maintain confidentiality as best as they can.
As unfortunate as it is to deal with harassment and abuse in the workplace, employers have an opportunity to be impactful in the long run and rise to change the landscape. The steps an employer takes after these incidents come to light could bring change to how the victim heals, how the workplace changes, and how perpetrators (perhaps most importantly) are deterred from engaging in further sexualized misconduct.
Employers must do the right thing and work to eliminate the harassment and abuse that still runs rampant in Canadian workplaces.
Muneeza Sheikh is an employment lawyer in Toronto.