The recent public denunciations of sexual harassment in the entertainment industry in both Quebec and the United States triggered a visceral reaction.
The recent public denunciations of sexual harassment in the entertainment industry in both Quebec and the United States triggered a visceral reaction. Actress Alyssa Milano’s call-out to use the hashtag #MeToo on social media to report instances of sexual harassment has gained incredible traction. Literally millions of people have come forward to shatter what was heretofore a wall of silence. Facebook confirmed that in less than 24 hours, 4.7 million people published messages using #MeToo and similar hashtags in other languages, generating 12 million reactions, comments and other postings. This unprecedented social phenomenon could definitely have an impact on labour relations, since Quebec’s Labour Standards Act imposes stringent obligations on employers in connection with psychological and sexual harassment.
Here are five pieces of advice in this regard:
1. Know the legal obligations of every employer
The Labour Standards Act imposes a two-pronged obligation on every employer: Take all reasonable means to prevent psychological harassment, and put a stop to any instance of it as soon as it comes to the employer’s attention. This obligation also applies to any instance of sexual harassment, as the latter is included in the definition of psychological harassment. The act defines psychological harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological integrity and that results in a harmful work environment for the employee.”
It should also be noted that an employer must also protect its employees in any situation constituting psychological harassment brought about or created not only by an employee or a manager but also by a person not in its employ. For example, if an employer’s client or supplier harasses an employee, the employer will have to be able to show that it fulfilled its two-fold obligation.
2. Be particularly vigilant at activities held outside the workplace
The employer’s obligation does not end when its employees leave the physical confines of the workplace. The employer must also ensure that its employees are not subject to harassment when they attend gatherings or participate in activities outside the workplace that are organized by the employer. As the Christmas party season approaches, a timely email or memo to employees reminding them of the behavioural standards that must be observed on such occasions can be a good way to prevent the occurrence of any untoward situation.
3. Ensure that the employer you advise has an effective policy against psychological harassment in the workplace
This policy should be an efficient tool allowing the employer to fulfil its obligations and not a straightjacket of constraining rules. Most enterprises already have a policy on psychological harassment. However, it is not just the existence of such a policy that is important but the speed with which it is put into action once a complaint is made, as this can avoid proceedings being filed with the Commission des normes du travail, de l’équité et de la santé et sécurité au travail. It is essential that any complaint made to the employer be dealt with internally as expeditiously as possible, as the time limit for filing an official complaint with the CNESST is very short: Any person wishing to file a complaint regarding psychological harassment at work must do so within 90 days following the last incidence of the offending behaviour (according to s. 123.7 of the act).
The employer must also ensure that the steps for dealing with a complaint set out in its policy can be readily achieved. For example, if the policy provides for a list of individuals who can be members of an investigation committee, that list must be kept up to date.
4. Ensure that the person responsible for receiving psychological harassment complaints is carefully chosen
Helping the employer to choose the right person to whom psychological harassment complaints are to be made by employees is crucial. While it is generally preferable to designate someone at a senior level, every enterprise is unique, such that it may sometimes be better to designate two individuals, i.e., a man and a woman. Choosing a person lower down in the hierarchy but who is more accessible may also be preferable in order to make it easier for an employee to complain of or report a problematic situation.
5. Implement remedial measures as soon as a complaint or report of psychological harassment is received, where appropriate
The mere existence of a policy and the launching of an investigation will not be enough for the employer to maintain it has fulfilled its legal obligations toward an employee who complained of harassment. In most cases, the employer should consider putting preventive measures in place as soon as a complaint is made internally, as the ensuing investigation can sometimes take several weeks before being completed. This can be achieved, for example, by changing the assignment of the complainant or the alleged harasser so that they are no longer in contact with each other or by insisting that the alleged harasser no longer communicates with the complainant. Such measures must ensure that the complainant can do their work.
If the employer does not succeed in convincing the court that it took appropriate measures to prevent or put a stop to the harassment, it may be ordered to pay damages, pay the costs of the hearing or to put in place a sensitization and training program on psychological harassment.
It is essential to remember that every employer is bound to take action as soon as it becomes aware of improper conduct on the part of an employee or a third party in the workplace or at a work-related activity. It must not wait until a formal complaint is made or hide behind its policy if it suspects something untoward is occurring. Where harassment is concerned, it is better by far to be proactive.
Catherine Galardo is a partner in the Montréal office of Langlois lawyers, practising primarily in the areas of employment and labour law and administrative law. Frequently involved in files involving both unionized and non-unionized employees, she advises businesses and organizations on a range of issues such as the interpretation and application of collective agreements, the imposition of disciplinary sanctions, handling psychological harassment complaints, drafting and applying employment agreements and dealing with claims for dismissal without cause. She also deals with human rights issues and conducts investigations into psychological harassment allegations.