Canadian Lawyer Magazine talks to Emma Phillips about #MeToo
Canadian Lawyer Magazine recently spoke to Emma Phillips about the #MeToo movement and the challenges in addressing workplace sexual harassment.
Commenting on the successive failures of the RCMP to implement broad, systemic change, and focusing only on ad hoc or short-lived initiatives, Emma, who was counsel to the RCMP external review says:
“The problem with that is that if the membership is disaffected and feels that it’s not a genuine effort or concern then they are really going to be skeptical about any initiatives that are put in place.”
Emma also addressed sexual harassment training,
Sexual harassment training can help and can be a critical component to encourage change in workplace culture, say employment and labour lawyers. On the other hand, it can hinder and reinforce gender stereotypes. Inexpensive, off-the-shelf training videos, online software or, worse still, PowerPoint presentations (some subjected to it referred to it as “Death by PowerPoint”) can have a regressive effect as it becomes an object of ridicule. There’s no way around it. It may sound dreary and technical, says Phillips, but the most effective training is conducted by a “high-quality” person, is interactive and adapted to the specific workplace.
Making inroads is so-called bystander training. Traditionally used in emergency situations, bystander training has been adopted by the Canadian Armed Forces and is being taught at a growing number of colleges and universities. Research by the Australian Human Rights Commission reveals that bystanders were more likely than those preyed on to act against sexual harassment. It seeks to encourage individuals to act less as “passive” bystanders and to be more active. Bystander training empowers individuals to recognize inappropriate conduct and trains them to intervene, sometimes discreetly and diplomatically and other times more assertively. In a word, sexual harassment becomes everyone’s business.
“It can be a really effective way of reinforcing respectful workplace policies and culture and also supporting individuals in the workplace when things do happen so that they feel there is a supportive network for them,” says Phillips, who acted as counsel to the External Review on Sexual Misconduct and Sexual Harassment in the Armed Forces and to an independent review commissioned by the United Nations on sexual abuse by peacekeepers.
Emma noted that the jurisprudence governing sexual harassment investigations is still developing:
The case law, however, surrounding workplace investigations is emerging and barely existed some 15 years ago. Phillips says it will likely be a burgeoning area, particularly in Ontario, with the passage of Bill 132, which imposes a positive duty on employers to investigate allegations of workplace harassment. Under Bill 132, employers are required to take an investigation that is “appropriate in the circumstances.”
“It’s not entirely clear what appropriate and circumstances mean,” says Phillips. “It’s not defined. That legislation is very new, so we don’t really know how it’s going to be interpreted.” Though it’s early days, Phillips says she is also exploring with labour organizations whether it is possible to negotiate a protocol with employers for some sort of minimum procedural fairness framework within workplace investigations.
Still, arbitrators and human rights tribunals, an avenue victims are expected to resort to increasingly, have been handing out higher awards than ever before. In a recent case, the Ontario Human Rights Tribunal ordered a shoe store owner and landlord to pay $200,000 as compensation to a woman for sexual harassment and assaults she suffered at his hands. “Human rights tribunals are showing that they are very concerned about these issues and they are taking the damages to the individuals who experienced them very seriously,” says Phillips.