Canada: Allegations Are Not Fact: Employers Fail To Investigate At Their Own Peril

Last Updated: March 27 2018
Article by Stuart Rudner

The #metoo movement should not change employers' response to allegations of harassment: investigate before penalizing

Although he would undoubtedly prefer not to be, Patrick Brown has become the latest example of the seismic shift we have in the way that our society approaches workplace sexual harassment over the past few months. Allegations of sexual improprieties, including forced oral sex with a minor, destroyed his political career overnight. No more than a few weeks later, some of the allegations, including the fact that the alleged victim was in high school at the time, were acknowledged to be false. By that time, the damage was already done.

I am in no way saying that Patrick Brown is innocent. Nor am I saying that he is guilty. Frankly, that is irrelevant in the context of this post, which is directed to the employment consequences of harassment allegations. The point I would like to make is that while this is not a criminal prosecution, and there is no requirement of proof beyond a reasonable doubt, there should be some effort made to substantiate allegations of harassment before an alleged harasser is penalized. We say this to our corporate clients all the time, whether the suspected misconduct is harassment or anything else. Sometimes, suspicions are unfounded and, unfortunately, allegations are sometimes inaccurate.

For years, I have been saying that we need to take sexual harassment in the workplace more seriously, and that perpetrators need to be punished in a meaningful way. See, for example, Sexual harassment can no longer be seen as 'cost of doing business' and Low damage awards for workplace sexual harassment sends wrong message. We have been saying that for years, in the context of any suspected misconduct.

We have also cautioned that employers should investigate (not prosecute) before imposing discipline or dismissal. See, for example, Employers: investigate harassment complaints before taking action and Crying wolf: False or exaggerated harassment complaints.

The evolution of how workplace sexual harassment is treated has taken a long time. For decades, behaviour that would be seen as completely inappropriate now was seen as normal (think Mad Men). And even behaviour that was known to be inappropriate was tolerated and, effectively, condoned. Harassers and abusers were often protected, especially if they were stars or rainmakers. Organizations perceived any risk arising out of this behaviour as a cost of doing business – "we'll deal with a claim if we need to but he is bringing in a lot of business". As a result, allegations were met with skepticism and, in many cases, the victims were either threatened and forced out, or quietly paid off.

In recent years, we have seen an increased focus on sexual harassment, with growing awareness of the prevalence of the behaviour and, encouragingly, growing awareness among individuals and organizations that it is unacceptable. The Jian Ghomeshi brought the issue to the fore, raising public awareness and increasing reporting of harassment, but the decimation of the complainants during their cross-examination has undoubtedly discouraged some victims from coming forward. That is unfortunate, as it was not indicative of how the typical scenario will unfold.

The situation changed seemingly overnight with the Harvey Weinstein scandal, which led to the emergence of the #metoo movement. All of a sudden, the pendulum swung entirely the other way. Instead of approaching any allegation skeptically and staunchly defending the accused harasser, organizations are swiftly cutting ties with the accused at the mere hint of a scandal. It seems as though any allegation will result in the immediate dismissal of an employee, cancellation of a contract, or in the case of Patrick Brown, removal from political office and, effectively the end of a political career.

Patrick Brown may well be guilty of what he is accused of but, on the night the scandal broke, we had no idea if the allegations were true or not. And while we would all like to believe that no one would make up such allegations, few if any of us would have believed that an eleven year old girl, or her family, would concoct a story about a mysterious man attacking her on the way to school and cutting her hijab. Yet that happened a few weeks ago.

Our system of justice is based on a presumption of innocence. In the criminal context, an accused should only be convicted by Judge or jury if their guilt is proven beyond a reasonable doubt. In the employment context, the civil standard of proof applies, which is a balance of probabilities. The simplest way to explain this is that the decision-maker must be convinced that the allegations are more likely than not.

What is troubling is that individuals accused of sexual harassment in recent times have not been given an opportunity to respond to those allegations or challenge their reliability. Before any of that could happen, jobs have been lost and careers destroyed. And we all know that even if the allegations are ultimately disproved, the accused will never be looked at in the same way. That should be terrifying to all of us, because it could happen to anyone.

My friend and well-known criminal lawyer Edward Prutschi, has commented on this, as have many others. As he said, in relation to the Patrick Brown situation,

"Recent changes of important features in the allegations of the two complainants demonstrate precisely the type of loose thread that defence lawyers are trained to pull on as entire cases unravel. With the allegations against Patrick Brown already imploding, I can only imagine how quickly the case would fall into total collapse under the pressure of a skilled cross-examination."

It is remarkable that things have changed so dramatically, so quickly. But the current climate not the ideal one. We must leave room for allegations to be tested and for people to defend themselves. In the employment law context, where "conviction" should only occur after an investigation takes place, people should not lose their jobs just because they were the subject of allegations. The proper response is to conduct a thorough, objective investigation in a timely manner. Once that has been completed, a conclusion should be reached as to what happened (on a balance of probabilities), and then appropriate action can be taken.

As I discuss extensively in my text on summary dismissal, You're Fired!, not all misconduct warrants dismissal. In some cases, a lesser form of discipline will be appropriate. And when the allegations are not borne out, the accused can continue in their role, rather than having to pick up the pieces after being publicly accused, tried and convicted in one fell swoop. Unfortunately, I have seen sexual harassment allegations used as a weapon. Although the allegations in that case were investigated and eventually found to be false, the damage was done: the accused could not continue in the company with all of the rumours flying around. His career was destroyed, though he had done nothing wrong.

I recognize that many of the alleged harassers that we have read about in recent times have been public figures: Harvey Weinstein, Matt Lauer, Kevin Spacey, Patrick Brown, etc. Those are not typical employment scenarios, and it can be harder to proceed fairly in those contexts. That said, TVO has done a good job of treating Steve Paikin fairly after he was accused of sexual harassment, proving it can be done.

As we always advise employers, if allegations or suspicions of harassment arise, you have a duty to investigate them. The investigation should be fair, thorough, and timely. Discipline should not be imposed unless you are satisfied that misconduct took place. And even if it did, not all misconduct warrants dismissal.

I am happy that we seem to have entered into a new era where workplace sexual harassment is seen as unacceptable. Victims have been left without recourse for far too long. But we should not forget about the rights of the "accused", even if we are not talking about a criminal prosecution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions