A high profile lawyer has claimed that workplace handling of sexual harassment cases is fraught with issues of fairness and partiality, bringing the role of HR professionals into the spotlight.
Canada’s recent response to the spate of sexual harassment allegations in Hollywood and elsewhere – the release of a federal report which confirmed the prevalence of harassment in workplaces, and the introduction of Bill C-65, which makes employers in federal workplaces more responsible in handling harassment cases – was generally well-received.
But a female lawyer, Muneeza Sheikh -- a partner at Levitt LLP, specializing in employment, labour and human rights – has said putting the onus on Canadian employers to tackle workplace harassment is intrinsically problematic.
In an opinion piece for CBC
News last week, Sheikh claimed that employers and HR departments are not well-equipped to deal with sexual harassment fairly and impartially.
“The workplace is rarely as neat and uncomplicated as these sorts of bills and reports tend to imagine. There are often concerns about confidentiality, personal relationships and reputations,” she wrote.
“Indeed, most of those surveyed for the report identified employer retaliation and not being taken seriously as the most common barriers to taking complaints to employers.”
She concedes that many Canadians agree that employers as an institution should carry the burden of protecting their employees.
legislation, known as Bill C-65, aims to giving employers and HR departments clear procedures to deal with allegations of bullying, harassment and sexual harassment.
Bill C-65 requires that:
- Policies on harassment be posted publicly;
- Employers conduct an investigation when faced with misconduct allegations (and bring in a thirdparty investigator when necessary); and
- Employers offer support to those who are victimized in the workplace.
Real-life examples, however, highlight the fact that employers (including HR professionals) will have difficulty in acting objectively in assessing employee complaints, and that that an appointed employee cannot provide a truly unbiased assessment of employer misconduct.
- For example, a woman experienced harassment from her CEO boss. The head of the HR department is a niece of the CEO, and the victim suffered in silence for a decade.
- Another woman suffered verbal and physical abuse at the hands of her boss – her father, the owner of the company.
- Yet another woman was groped by a client during a company outing, and when she finally spoke about it, instead of severing ties with the client, the employer lowered her working hours and pay. She was also repeatedly asked where she was "100 per cent sure" it happened.
According to Sheikh, because almost all the victims are women in subordinate positions, often reporting to the senior-level men who harass them, the determination as to whether an employer has breached its obligations to address employee harassment is best left to a truly objective third-party.
“Clearly, the government (along with many others) is tired of the empty platitudes around how employers are vowing to change attitudes around harassment in the workplace. They want to see employers actually make changes. But the workplace is really the wrong venue in which to settle these disputes.”
Sheikh believes employees would be far better served with the tightening of human rights and occupational health
and safety legislation, and by creating a more efficient route to have complaints heard by regulatory bodies.
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