Canada: Lessons From U.S. Sexual Harassment Class Actions For Canadian Employers

The #metoo movement has crystallized the need for employers to actively mitigate the risk of sexual harassment and discrimination class actions. As we outlined in a previous article, although there have been few of these claims commenced to date in Canada, the risks for employers are real. The flood of sexual harassment class actions in the U.S. demonstrates the urgency of this issue.

In this article we identify trends emerging from U.S. sexual harassment and discrimination class actions which are or could be making their way to Canada. The purpose is to identify lessons learned and to outline pro-active advice for employers. Our review of the legal landscape leads to three suggestions for employers seeking to reduce their exposure to the threat of sexual harassment and discrimination class actions:

  • ensure that workplace harassment policies are comprehensive, understood by employees and consistently enforced;
  • promote and maintain diversity across all levels of the organization; and
  • put in place formal investigation and complaint resolution mechanisms for sexual harassment and discrimination complaints.

Trends in Sexual Harassment Class Actions

Weinstein-Style Harassment Claims

Historically, U.S. sexual harassment class actions have been brought where harassment is alleged to have been committed by multiple perpetrators across an organization. The claims often alleged that a "culture" of harassment or discrimination was tolerated, or even encouraged.1 However, a new trend has emerged in the wake of the #metoo movement. There has been an influx in "Weinstein-style" sexual harassment actions, where one individual is alleged to have harassed or abused multiple people across the organization.

Our review of U.S. sexual harassment and discrimination class actions has shown that claims appear more likely to arise in highly gendered work environments with pronounced divisions in gender roles.

The lawsuit against The Weinstein Company is the paradigmatic example of this trend.2 The plaintiffs alleged that Harvey Weinstein engaged in unwanted sexual conduct against the plaintiffs, who operated under duress and the threat of being blacklisted. Furthermore, The Weinstein Company, Miramax, and others in the industry are alleged to have covered up Mr. Weinstein's harassment. The recent class action filed against the University of Southern California (USC) is another example of this trend. This claim states that Dr. Tyndall, a gynecologist at USC, sexually harassed patients and the university failed to stop his behaviour.3 The central allegation in these claims is that the employer was aware of, turned a blind-eye to and failed to prevent the perpetrator's behaviour.

In Canada, we have seen a similar trend in claims against Bruce Monk of the Royal Winnipeg Ballet,4 and Gilbert Rozon of Just for Laughs.5

Environments with a Noticeable Gender Imbalance

Another trend that we have identified in our review of U.S. sexual harassment and discrimination class actions is that claims are more likely to arise in highly gendered work environments with pronounced divisions in gender roles: the mining industry, the entertainment industry, a highly stratified retail environment, a women's prison, etc.

This trend has been visible since the very beginning of sexual harassment class actions. The first U.S. sexual harassment class action was commenced against the mining company Eveleth Taconite Co.6 The plaintiffs alleged that the company's predominantly male employees 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. For example, Sterling Jewelers is currently involved in a class action arbitration in which the plaintiffs allege that the company's principally male managers created an environment in which female employees were expected to accede to sexual overtures, including soliciting sexual relations as a quid pro quo for employment benefits.

Class actions tend to be filed in work environments where sexual harassment and abuse are "open secrets," forcing employers to grapple with years of unresolved complaints when a legal claim is brought forward.

An identical trend is developing in Canada. We have seen claims commenced against the military and police forces,7 the entertainment industry, and the airline industry. 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.

Failure to Appropriately Resolve Complaints

Finally, our review of the U.S. experience suggests that the surrounding context and history of mishandled or ignored complaints are relevant precursors to the commencement of class action litigation. Class actions don't appear overnight—the majority of claims commenced to date in the U.S. have emerged after decades of employers allegedly disregarding or inadequately responding to complaints of harassment and discrimination. In Chi v USC, the plaintiffs alleged that complaints about Dr. Tyndall's behavior began to surface in the 1990s, but USC did not take action until 2016. A recent class action filed against the New Jersey Department of Corrections tells a similar story. The plaintiffs claimed that there has been decades of recognized and documented sexual assault and harassment of female inmates by prison employees, agents, administrators and other inmates at Edna Mahan Correctional Facility for Women.

In Canada, a similar pattern is emerging. 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 that women became eligible to join the institution.8 In two class actions commenced against the Canadian Armed Forces, the plaintiffs complaints go back even farther.9 These claims alleged systemic and historical failures to prevent sexual assault and harassment by discouraging victims from reporting, failing to have proper training and policies in place, failing to investigate reported incidents, and retaliating against members who come forward.

Together, these examples underscore that class actions tend to be filed in work environments where sexual harassment and abuse are "open secrets," forcing employers to grapple with years of unresolved complaints when a legal claim is brought forward.

Suggestions for Employers

Implement Comprehensive Workplace Harassment Policies

Since the United States Supreme Court's 2011 decision in Wal-Mart v Dukes, U.S. courts have consistently reinforced the importance of rigorous workplace harassment policies. In particular, the implementation of these policies has assisted employers in resisting claims that they have a policy or practice of encouraging or facilitating harassment.

Anti-harassment policies need to be consistently enforced. Employers that make exceptions to these policies or fail to follow their requirements are putting their employees and the success of the company at real risk.

However, in the #metoo era, the mere existence of a workplace harassment policy is not an adequate defense against litigation. For example, in the lawsuit filed against USC, the university admitted that official complaints about Dr. Tyndall's behavior did not receive proper investigation. To be an effective tool to defend against litigation, anti-harassment policies must be actively understood and consistently 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 in place, employees do not receive training on them.10 This is a strategic error on the part of employers. Anti-harassment policies are best deployed as a deterrent and first response against sexual harassment.

Employers should implement regular training sessions on these policies and include a review of their policy on anti-harassment 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.

Finally, anti-harassment policies need to be consistently enforced. Employers that make exceptions to these policies or fail to follow their requirements when presented with complaints or information from whistle-blowers risk creating additional liability.

Promote and Maintain Diversity Across All Levels of the Organization

Increasing diversity may also be an effective means of reducing sexual harassment and discrimination claims. One of the key risk factors for sexual violence, harassment and discrimination is adherence to traditional gender norms. A study found that female respondents who experienced sexual harassment tended to work in environments with a higher ratio of men in positions of power. Furthermore, 94% of people who reported experiencing sexual harassment were women.11

The benefit of greater diversity in the workplace doesn't only apply to gender diversity. The same study conducted on behalf of the Government of Canada found that people with disabilities and members of a visible minority were more likely to experience harassment than other groups. For the greatest impact, employers should interpret "diversity" as a broad move towards multiple types of inclusion.12

Implement Appropriate Investigation and Dispute Resolution Mechanisms

If sexual harassment complaints do arise, it is essential that employers have appropriate investigation and dispute resolution mechanisms in place. Failing to put in place such processes represents a significant liability for employers. However, these processes must be rigorously adhered to.

Having a nominal dispute resolution mechanism in place is not effective if complainants fear retribution if they speak out, or fail to receive effective follow up after making a complaint. Employers should ensure that (a) employees are actively made aware of these channels; (b) managers are trained on the availability of the channels and what their roles are; and (c) these procedures are followed with consistency.

The importance of maintaining rigorous investigation and dispute resolution mechanisms is particularly acute in Ontario, which has eliminated limitation periods for proceedings based on sexual assault. Similar legislative changes have occurred across Canada in British Columbia, Saskatchewan, Manitoba and Nova Scotia.

Given the developing area of the law, coupled with the broader social and political pressures of the #metoo movement, Canadian employers should be vigilant with regards to workplace sexual harassment. Employers can protect themselves and their employees by enforcing rigorous anti-harassment policies that focus on prevention, workplace diversity, and the effective dispute resolution.

Footnotes

1 For example, see Jenson v. Eveleth Taconite Co., the Sterling Jewelers class action arbitration, and the claim commenced against the New Jersey Department of Corrections.

2 Jane Doe v. The Weinstein Company Holdings

3 Chi v. University of Southern California

4 Doucet v. The Royal Winnipeg Ballet.

5 Les Courageuses c. Gilbert Rozon.

6 Jenson v. Eveleth Taconite Co.

7 See Davidson v. Canada (Attorney General); Merlo v. Canada (Attorney General); Heyder, Graham, Schultz-Nielsen v. the Attorney General; Ross, Roy, Satalic v. Her Majesty the Queen; etc.

8 Davidson v. Canada (Attorney General) and Merlo v. Canada (Attorney General).

9 Heyder, Graham, Schultz-Nielsen v. the Attorney General and Ross, Roy, Satalic v. Her Majesty the Queen

10 Harassment and Sexual Violence in the Workplace: Public Consultation (2017). Online: http://www12.esdc.gc.ca/sgpe-pmps/h.4m.2@-eng.jsp?utm_campaign=not-applicable&utm_medium=vanity-url&utm_source=canada-ca_publicentre-esdc

11 Ibid.

12 Ibid.

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
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