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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
During the last several months, many of you have probably found yourself waking up in the morning and thinking: who’s next?
Which towering figure from the world of entertainment, art, politics, restaurants, media — you name it — will be toppled due to accusations of sexual harassment?
I am an employment lawyer who has worked in this area for years — and yet, I must confess that I, too, have been surprised and shocked by the volume of the allegations and the speed with which the Me Too movement has taken hold in the zeitgeist.
Like many of you, I have asked myself, is this a moment or a movement?
Well, here is what I have concluded:
Me Too — and the unstoppable demand for a reckoning that it has unleashed — is no blip.
We are living through a pivotal moment.
In fact, I have come to think of Me Too as a crack in the tectonic plates of our culture.
There was the way we thought about sexual harassment before those tectonic plates shifted.
And there is the way we think about it now.
Can it only be eight months since the New York Times and New Yorker broke the Weinstein story and blew that fault line wide open? It seems like a lifetime ago, doesn’t it?
To understand how profoundly perceptions have changed since then you need look no further than the two verdicts in the Bill Cosby trials. Or Harvey Weinstein’s perp walk.
It would be unwise, I think, to underestimate the enormity of this moment — to think that it will blow over, that people will forget, that things will go back to the way they were.
I don’t think we are going back.
I say this because of what I see all around me when I go to work, when I read the paper, when I turn on the news, and when my colleagues and I go deep into corporate Canada and the public sector to do training and conduct investigations.
Those who misread the significance of this moment do so at their peril.
I don’t just mean high-profile individuals like, say, Charlie Rose and Mario Batali. I mean organizations as well. Me Too has seeped into the workplace. Organizations that ignore its implications stand to lose their reputations and the goodwill of the employees who work within them.
What Me Too has revealed for all to see is that sexual harassment is baked into our culture.
There is now all around us a heightened sense that an epidemic of sexual harassment exists in our workplaces and other institutions, that no one is immune, that we are dealing with a systemic issue that cuts across every industry and institution.
So now we all know. We are not going to un-see what we have seen.
But where do we go from here? Now what?
Before I can answer that question I need to go back a bit and tell you about my history with this issue.
I have a very unique practice as an employment lawyer — the type that would not have been remotely imaginable when I was called to the Bar 27 years ago.
Our firm, Rubin Thomlinson, started as a traditional employment law firm 15 years ago.
However, over the years, the focus of our work has evolved to the point where my fourteen colleagues and I do nothing but investigate harassment and misconduct complaints and conduct assessments and training.
To illustrate the work we do — and the workplace in which we are all living — let me give you a snapshot of some of the cases I have dealt with over the years:
– Ten immigrant women who worked at a fast food restaurant were routinely groped and grabbed by their boss —the owner of the restaurant — whose harassment and assault of them included locking them in the walk-in freezer so he could pin them down;
– Not one but two cases of senior managers who were travelling with their teams, plied them with alcohol and then had sex with female subordinates who were barely conscious;
– A trans woman whose male colleague was so outwardly disgusted by her that he referred to her as “It” instead of by name and relentlessly mocked her clothing, makeup and mannerisms;
– A woman whose boss exposed himself to her on numerous occasions when she walked into his office;
– A male retail store manager who sent explicit texts to and engaged in grooming behaviour towards several of his teenaged male subordinates;
– A female lawyer at the beginning of her career who went to shake the hand of the older male lawyer who’d just offered her her first legal job when he said he’d prefer to touch her breast —and who, once she began working, asked her to show up at client meetings wearing a skirt but no panties because he wanted a little flash to spice things up.
These cases are more than passing files for me.
Each time I sit down to interview someone and learn about the indignities and trauma they have been forced to endure at work or at school — with a boss, with a colleague, with an entire team — I learn more about what goes on in the workplace, and what we can — and cannot —reasonably expect when we go to work.
My colleagues and I have investigated complaints in every conceivable type of workplace across the country: professional service firms, media organizations, manufacturing companies, municipalities and school boards.
Most of our work takes place under the radar — although some of our cases do draw media attention.
One investigation I conducted that was widely reported a few years ago was the CBC investigation of Jian Ghomeshi.
The volume and scope of our firm’s work in this area and the length of time my colleagues and I have spent investigating such complaints offers me a unique lens through which to view the Me Too movement.
What we have learned, time and time again, is that the story is the same everywhere we go.
Sexual harassment is the dirty secret of our workplaces and institutions. It is a persistent workplace problem that involves all types of working relationships and one that we have yet to solve.
The victims are predominantly, although not exclusively, women.
While sexual harassment is unlawful — and I feel compelled to remind you that it is against the law to sexually harass someone — it stills occurs widely.
Let me give you some statistics:
A 2018 Angus Reid survey found that one in two Canadian women have been sexually harassed at one or more points during their working lives.
That’s half —I repeat, half – of the working population of women.
28 per cent — or almost a third — have been subject to non-consensual touching in the workplace. And 89 percent say they use strategies to avoid unwanted sexual advances in the workplace.
What do these statistics tell us?
They tell us that for women, sexual harassment is a working condition they are currently forced to endure at some point — or repeatedly — during their working lives.
At it heart, sexual harassment is really only about one issue: equality. And on that subject I am going to be absolutely blunt:
There is no equality when one group sees another group’s bodies or boundaries as theirs to violate.
There is no equality when so many women who are just trying to do their jobs have to cope with being disrespected and debased.
There is no equality when so many women are forced to endure trauma, the loss of their personal power, their trust in others, and their hopes and dreams.
As I mentioned earlier, because of the nature of our work, our firm is a barometer of sorts for what is going on.
I must tell you that since October 15th,, which marked the “ground zero” #metoo tweet, interest in this issue has exploded.
We have been hearing from all sorts of organizations we have never heard from before, and the volume of our caseload has nearly doubled.
Our clients – both old and new – are seeking assistance with a rise of internal complaints – with strategies to get at problems that are simmering – as well as with all sorts of training initiatives.
This symposium is but one example of the new hunger to understand this issue and put practices in place to address it.
Moreover, in these calls, I have detected stronger awareness of the issue and stronger resolve to deal with the problem.
However, the last thing I want to do is give you the impression that the problem is solved.
Let me share some more statistics with you:
Despite those Angus Reid numbers I mentioned earlier about one in two Canadian women reporting they’d been sexually harassed at one or more points during their working lives, consider this: in a survey conducted late last year of 153 Canadian executives —95% of whom were male— the Gandalf Group reported that 94% said sexual harassment was not a problem at their companies.
94 per cent! So, no, I don’t think we should be waving the victory flag just yet.
But now for some good news. While I don’t want to be too Pollyanna-ish about this, I am seeing leadership on this issue that I have not seen before.
And I’m not just seeing it from women. I’m seeing it from men. Men are equally appalled at what is going on. Many are grappling with the magnitude and complexity of the issue for the first time.
In the last several months I have been in awe of the many women who have come forward to tell their stories of sexual harassment
But I have also been deeply moved by the many men —several of whom are leaders of organizations —who have asked me what more can I do? Help me understand what I didn’t see before — I want to support my employees — I want women here to have every opportunity to do as well as men.
This is a very clear message I am hearing – I want to do the right thing. Help me do the right thing. The men with whom I’m having these conversations are full of good will.
So I don’t think we should be spending our time worrying about a potential Me Too backlash. Instead, I think we should be focusing our energies building on the momentum of this moment.
Let me give you some examples of the kind of leadership I am seeing:
When I spoke to a large professional services firm recently, I walked into a room that consisted almost exclusively of middle-aged men. I took one look around the room and thought, oh my, this is going to be a painful half hour. How on earth am I going to capture their attention? But that audience hung on every word and asked some of the most interesting and intelligent questions I’ve ever been asked
I had involvement with a CEO whose organization had missed something quite significant regarding the harassment of a young woman. I went in to try to figure out how they had missed it. In the aftermath of my investigation, the CEO decided that to ensure the ball didn’t get dropped again, going forward, every sexual harassment complaint was going to cross his desk.
In one organization where I conducted an investigation, one of the CEO’s reports had used highly sexualized language towards a female subordinate. There was no touching involved, but he had behaved very badly. The individual was highly valuable to the organization. The CEO struggled mightily with how to handle the issue. He and I had several conversations about the matter. In the end, he told me, “I don’t think I can look my female employees in the eye if I keep this person on’, and he terminated him.
I have never encountered anything like this before. It is the most profound shift I have seen in almost three decades of practice.
There is no doubt that the ugliness Me Too has exposed has been difficult for many of us to process. But as difficult as this moment has been, I believe we can — and indeed must —leverage it to create a better, fairer and more inclusive work environment for us all.
Now I’d like to talk you now about three strategies I believe can help us accomplish that goal:
One — Recognizing the limitations of our complaint-based systems to deal with workplace sexual harassment;
Two – Creating a role for bystanders and a way for them to intervene when they know someone is being harassed;
And Three — Raising the bar in terms of the standard of behaviour we must demand in our workplaces;
To the first point, let me return, for a moment, to that Angus Reid survey.
Apart from documenting the widespread prevalence of workplace sexual harassment of Canadian women, the survey revealed another crucial finding:
Of the one in two Canadian women who had experienced sexual harassment at work, only a quarter had reported it. What that statistic means is that in most organizations, the vast majority of sexual harassment at work goes underground.
And that means that if you are a leader, and you conclude that you don’t have a sexual harassment problem in your organization because you’ve not received any complaints, you would be wrong.
Just because you aren’t hearing about sexual harassment, doesn’t mean it’s not there.
In fact, likelier the opposite is true.
Given this information gap, employers might be tempted to fix the problem by focusing their efforts exclusively on getting more people to report by instituting better support systems and internal mechanisms to deal with complaints.
These are laudable goals — and they should be part of any employer’s strategy to deal with sexual harassment.
However, it is my view — and I want to underline this point — that we shouldn’t be putting the entire burden of institutional change on the backs of complainants.
Indeed, in light of the fact that workplace sexual harassment still largely festers underground, employers seeking to address this problem need to be mindful that sexual harassment victims have many compelling reasons not to make complaints.
Aside from their fears about rocking the boat, taking on colleagues and superiors and not being believed, they fear reprisal.
And they have good reason to have that fear.
Indeed, the data on the issue is quite shocking. According to a recent study by the equal employment opportunity commission in the US, 75 per cent of women who report harassment at work suffer a reprisal.
Clearly, the issue we need to focus on isn’t why women don’t report. We already know the answer to that question. The issue we need to focus on is why employers wait for complaints before tackling the issue.
Employers who wait will wait a long time because, for a host of compelling reasons, those complaints will never come.
Through all the work my colleagues and I have done over the years, I have come to realize that if an employer sincerely wants to know about what is going on in the workplace, that employer is going to have to ask employees.
And let me be clear here: I don’t just mean by conducting an engagement survey.
I mean by asking in a way that provides employees with a safe and ideally confidential mechanism through which to communicate whether they are experiencing harassment at work and whether they are aware of others who are experiencing it.
I mean by developing a more proactive information-gathering approach designed to unearth sexual harassment in their organization, including mechanisms such as surveys, assessments, exit interviews and confidential hotlines.
Every time our firm has conducted a process to proactively seek out information in this manner, we have been able to uncover all sorts of information the employer had no clue about.
If you want to know what’s really going on behind closed doors in your organization, ask. Don’t wait to be told.
Second — we have to move away from the notion that what happens to the people with whom we spend the majority of our days and who, in many cases, we think of as our second families, is none of our business.
We can no longer avert our eyes. We have to recognize that what happens to our colleagues is our problem, too.
In many of the investigations we have done, we have found people who knew the victim was experiencing harassment. In some cases, they even witnessed or heard it.
These “bystanders” did not intervene or report the situation to superiors either because they did not see it as their role or right to do so, they thought someone else would report the situation, or they didn’t want to stick their necks out.
They fell into the trap of thinking they should wait to intervene until they were 100 per cent comfortable about doing so —which of course never happened.
In their minds, they were just minding their own business.
But therein lies the flawed thinking. Because how people are treated in our workplaces and institutions is everyone’s business. It should matter to all of us what our colleagues are experiencing at work.
And yes, we are allowed to hold others to certain standards: not merely that they respect us, but that they respect the people around us.
We must be vigilant about protecting each other from demeaning, debasing and violating forms of behaviour. We must consider intervention not just an option, but our duty as good workplace citizens.
How do we do this?
By giving employee bystanders a recognized role and name in our policies, by training and empowering them to intervene, and by teaching them how to report in certain circumstances.
We know this approach works.
The Canadian Armed Forces is leading the way in bystander intervention training in the country.
Since instituting its training programs, the CAF has found that bystanders increasingly intervene in cases of harassment and report on behalf of their colleagues.
Finally, how do we raise the bar in terms of the standard of conduct we expect in our workplaces?
In light of the statistics and stories I have shared with you, I think it’s clear we have to start from the assumption that not everybody is getting the memo about what does and does not constitute appropriate workplace behaviour.
Indeed, it is my observation that we overestimate the degree to which people who come to work will behave respectfully if left to their own druthers.
We simply count on employees coming to work and behaving appropriately.
That assumption may be a reasonable one to make for the majority of employees. But then there are the outliers. And there are always outliers.
So let me be clear: if you want to deter sexual harassers, hoping for the best is not a solid management strategy.
If I have learned nothing else over the course of my practice, I have learned this: Respectful workplace behaviour doesn’t just happen. If you want to improve conduct, you have to work at improving it.
We must be absolutely clear on the standard we expect at work and hold everyone accountable to that standard — even the high-flying superstars. Especially the high-flying superstars.
The goal should be to create a workplace culture in which people are expected to behave civilly and respectfully towards one other. The values of civility and respect must be written in stone.
How do we do this?
First — by instituting clearly articulated policies. Policies that set the bar higher and spell out what kind of conduct constitutes harassment so employees know how they have to behave to meet that standard — and what will happen to them if they don’t.
Second — by ensuring employees receive meaningful training on the kind of behaviour expected of them — not once, but regularly. That last part is important. The training has to be ongoing.
Third — by incorporating that standard at every stage of the employment relationship from the recruitment of new employees to employee performance reviews, to the hiring process for leadership positions and for internal promotions.
Fourth —by viewing respectful behaviour towards others at work as a mandatory skillset required to join an organization and succeed within it — as opposed to a marginalized “soft skill” that may be nice to have but isn’t strictly necessary.
Finally, and most importantly —by requiring that all of the leaders in our workplaces and our organizations model respectful behaviour because the leaders are the ones who set the tone.
And so, here we all are – trying to find our footing in the wake of those tectonic plates shifting. There’s no doubt we are facing a daunting challenge. But we have also been given an incredible opportunity.
It won’t be easy. I’m not going to lie. We have our work cut out for us.
If we are serious about ridding our workplace culture of sexual harassment, we are going to need all hands on deck. That is why we are going to need women and men to take on this task together.
We must find a way to do this work together. We must, because sexual harassment affects us all directly or indirectly. Whether or not we are victims, it affects the people we care about: our colleagues, our sisters, our mothers, and our daughters. We must because we believe in equality in this country, and only by working together can we create an equal playing field for women in our workplaces and society.
As I have said, I am optimistic about the possibilities of change if we seize this moment.
I, for one, intend to seize it.
I encourage all of you to do the same.