Sexual harassment and discrimination class actions have never been more in the spotlight than they are today, and employers on both sides of the Canada-U.S. border are examining their policies and practices. While class actions arising out of sexual harassment allegations are less common in Canada, we are seeing trends amid the current deluge of U.S. sexual harassment and discrimination class actions which are making their way to Canada—or have already arrived.
Trends in sexual harassment class actions
Until very recently, sexual harassment class actions in the U.S. have been brought where an organization allegedly has a systemic problem with harassment and discrimination from multiple perpetrators. Increased scrutiny on workplace harassment has seen the rise of "Weinstein-style" actions where allegations rest with an individual in an organization. In the watershed suit Jane Doe v. The Weinstein Company Holdings, the plaintiffs alleged that Harvey Weinstein, with others in the company and the industry helping to cover up his behaviour, engaged in unwanted sexual conduct against the plaintiffs, pressuring them with the threat of professional blacklisting.
In Canada, we are beginning to see Weinstein-style claims focused on individuals, including against Bruce Monk of the Royal Winnipeg Ballet, and Gilbert Rozon of Just for Laughs.
Imbalance in the workplace
Another trend that we identified through our review of U.S. claims is that class actions alleging sexual harassment and discrimination are more likely to arise in highly gendered work environments with pronounced divisions in gender roles.
This trend that can be traced to the roots of sexual harassment class actions: The very first in the U.S. was commenced against the mining company Eveleth Taconite Co., in which it was alleged that the company's predominantly male staff and management engaged in verbal and physical sexual harassment, gender-based discrimination and sexual stereotyping of female subordinate employees. A similar gender dynamic is apparent in almost every U.S. sexual harassment class action since.
An identical trend is developing in Canada, with claims commenced in organizations with pronounced gender divisions, such as the military and police forces, the entertainment and airline industries to name a few. For instance, a proposed class action commenced against West Jet—a company operating in an industry with a pronounced divide between male pilots and female flight attendants—alleges that the company failed to properly investigate and respond to claims of sexual harassment.
Class actions don't appear overnight, and the U.S. experience suggests that complaints mishandled or left unnoticed are relevant precursors to class actions. The class actions commenced to date in the U.S. commonly come after years of employers allegedly disregarding or inadequately responding to complaints of harassment and discrimination.
In Canada, too, we see long-standing complaints as part of the equation. The plaintiffs in the lawsuit against the RCMP alleged that female employees were subjected to sexual discrimination, bullying and harassment as far back as 1974—the first year women became eligible to serve.
In two class actions commenced against the Canadian Armed Forces, the complaints go back even farther, alleging widespread institutional failures to prevent sexual assault and harassment by discouraging victims from reporting, failing to have proper training and policies in place, failing to investigate incidents and retaliating against complainants.
These examples underscore that class actions tend to arise in workplaces where sexual harassment and abuse are "open secrets," forcing employers to grapple with years of unresolved complaints when a legal claim is brought forward.
Takeaways for employers
Since the U.S. Supreme Court's 2011 decision in Wal-Mart v. Dukes, U.S. courts have consistently reinforced the importance of rigorous harassment policies to help employers resist claims that they have a policy or practice of encouraging or facilitating harassment.
But the existence of a workplace harassment policy is not enough: to be effective, anti-harassment policies must be actively understood and applied.
A study conducted on behalf of the government of Canada found that, although the majority of workplaces have sexual harassment and violence prevention policies, employees are not actively trained. Employers ignore training at their peril: anti-harassment policies are best deployed as a deterrent and first response against harassment.
Employers should implement regular training on their policies and include a review of their policy as part of onboarding for new employees. Employers may also consider requiring employees and managers to sign off on the policy on a yearly basis.
Policies must be enforced consistently. Employers that make exceptions or fail to follow their requirements when presented with complaints or information from whistleblowers risk additional liability.
Another way to reduce risk is to increase diversity. A key risk factor for sexual violence, harassment and discrimination class actions appears to be strict adherence to traditional gender norms. In a study, 94% of people who reported experiencing sexual harassment were women, and those women who experienced sexual harassment tended to work in environments with a higher ratio of men in positions of power.
The benefits of workplace diversity transcend gender. The government of Canada study also found that people with disabilities and members of a visible minority were more likely to experience harassment. For the greatest impact, employers should see diversity as a broad move toward multiple types of inclusion.
Investigation and dispute resolution
Failing to put the right investigation and dispute resolution mechanisms in place at an organization represents a significant liability for employers. A nominal dispute resolution mechanism is not effective if complainants fear retribution if they speak out, or fail to receive effective follow-up. Employers should ensure employees are made actively aware of the channels available to them, that management knows what their roles are, and that these policies are carried out consistently in practice.
Maintaining rigorous investigation and dispute resolution practices is especially important in Ontario, which has eliminated limitation periods for proceedings based on sexual assault. Similar legislative changes have occurred across Canada.
Given this changing area of law, and against the backdrop of the #MeToo movement on both sides of the Canada-U.S. border, Canadian employers must be vigilant to protect themselves and their employees through rigorous policies that focus on prevention, a diverse workplace and effective dispute resolution.
This article was originally published in The Lawyer's Daily.
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