Janice Rubin and Maria Luisa Vitti

Unfortunately, there is no Steve Harvey here, no witty responses and no cash prizes.  Instead, the surveys we reference are the numerous industry-specific sexual harassment surveys that have been recently circulated in the wake of the #MeToo movement. #MeToo sparked more than discussion of sexual harassment in Hollywood, as we now know it extended to an unmuting of voices of numerous individuals (largely female) who frequently experience(d) sexual harassment within their various work environments. We know from the case law, from personal stories and from the media that sexual harassment in the workplace is not a new phenomenon – the recent attention however, is.

Aside from the pan-workplace discussions on sexual harassment, #MeToo also inspired conversations within industry-specific communities. These discussions have since turned into inquiries about others’ experiences, thus sparking a sexual harassment survey boom. In the past few months alone, such surveys, reports and signed open letters emerged in very specific industries including: funds management, hospitality, academia, libraries, book publishing, children’s books, theatre, events planning, tech, self- creative and entrepreneurs, automotive, classical musicians, policing, Members of Parliament, newsroom and media, Swedish lawyers and even Swedish opera singers.

While some of these reports were conducted by professional survey groups or research firms, others were more grassroots – initiated by parties via SurveyMonkey and/or publicly accessible Google Document spreadsheets. Regardless of these differences, survey results across all industries generally told a similar story. Survey and reporting trends revealed:

• Women disproportionately experience sexual harassment at a greater rate than their male counterparts;
• A vast majority of participants, in most industries over 50% and in some industries 78%, have either experienced sexual harassment themselves (including comments and behaviours) or know someone who has been sexually harassed in the workplace;
• Individuals with precarious work arrangements experienced high rates of sexual harassment – underreporting was also an issue here;
• In certain industries, such as the theatre industry, gay men are the most likely to be affected;
• Many respondents described their harassers in a position of power – many of which used this position of power to harass/assault their target;
• A large number of participants stated that they do not/have not reported harassment due to a number of reasons – namely, participants:
  • Feared reprisal, termination and were wary of future job prospects;
  • Expressed lack of confidence in the reporting process;
  • Worried that their complaint would go nowhere;
  • Worried that filing a complaint would further complicate their time at work;
• A large number of women stated that they had been excluded from key business events due to their gender, and others believed they had been passed over for promotions due to their gender.

Given these results, we know that our workplaces have a glaringly obvious problem and a significant challenge to overcome. It begs the questions however, why is sexual harassment in the workplace (many workplaces) an ongoing issue? What has been done in terms of organizational or cultural change within companies and industries? While we do not have the definitive answer to this, another recent survey may provide some insight.

On December 18^th 2017, the Gandalf Group (in partnership with KPMG, BNN and the Globe and Mail) released survey results which, amongst other things, looked at C-Suite Executives’ perspectives on the issue of sexual harassment in the workplace. The results? Shocking yet unsurprising at the same time.

Before delving into results, it is important to consider the demographics of the survey participants involved. All participants hailed from the resources sector (oil and gas, mining and manufacturing) or the service and financial industries. Fifty per cent of the participants were CEOs, most respondents represented companies with more than 200 employees (many with over 1000 employees), 34% of participants were based in Ontario and 51% were based in Western Canada. Finally, 95% of participants were male – only 5% were female.

Survey results revealed:

• An astounding 68% of respondents said they have not heard of sexual harassment cases in their own companies;
• 52% of participants were more likely to say sexual harassment in the Canadian workplace was infrequent and rare than to say it was common and frequent;
• 69% of participants believe that sexual harassment in Canadian business is less of a problem than it was 15 years ago;
• A clear majority disagreed that sexual harassment and assault are problems in their companies. They were more likely to agree that sexual harassment and gender discrimination represent more of a problem generally speaking in business or their industry;
• Respondents in the financial sector were less likely than others to say harassment was a problem in their industry;
• Only 1 in 4 believes the majority of harassment cases in their companies are reported. Almost none would say that for the workforce in general;
• Most companies are very confident about the policies they have in place to respond to sexual harassment; and,
• The C-Suite believes culture is the most important factor in preventing sexual harassment. Policies and human resources teams are not unimportant, but leadership and tone are most important.

Our initial observation was that the C-suite survey results stand in stark contrast to the reality of many employees, largely women, within their workplaces. Given the C-suite survey results, how do we reconcile these results with industry-specific survey results?

As highlighted in the C-suite survey, executive participants recognized that few incidents of sexual harassment are actually reported in their companies. This of course would contribute to the perception that sexual harassment is not an issue within these participants’ companies because there is no data to illustrate a clear problem. What these executives fail to consider is that despite their reported confidence in their companies’ sexual harassment policies, there are several other factors which lead sexual harassment targets to forego the reporting process. As demonstrated in the industry-specific survey results, many women choose not to report for a number of reasons: lack of confidence in the reporting process, fear of inaction from their employers, fear of reprisal and future job prospects, fear of complicating matters further and sometimes they simply do not believe their experiences are worthy of a complaint. Further exacerbating matters is the demographic snapshot of Canadian C-suite executives. Notwithstanding the serious lack of diversity in the C-suite, according to catalyst.org, as of September 2017, of the 249 companies listed on the main index of the Toronto Stock Exchange, only 7 were run by women. How is this relevant? The C-suite survey results speak for themselves. Having a largely homogeneous group of decision makers at the top (who statistically do not experience or hear of sexual harassment in the workplace) creates a serious gap between perception and reality – a gap which significantly impacts those in the strata “below”.

Takeaways: What employers ought to consider

1. Sexual harassment is very clearly not industry-specific. There are no isolated loci where sexual harassment occurs, and there are no workplaces, industries or companies that are entirely insulated from its presence – it is a cultural phenomenon and it is occurring everywhere. Employers whose companies or industries are synonymous with “good people” doing “good work” should also be wary, again no place is immune (see the industry-specific results for the children’s book and library industries linked above). One of the areas employers ought to turn their attention to is cultural change within their organizations.

 Many believe that organizational cultural change from the top down is the answer in shifting behavioural norms in the workplace, and with C-suite survey participants agreeing that leadership is key, they may be headed in the right direction. According to a 2007 study, the single biggest predictor of sexual harassment on the job is how permissive an organization is of this behaviour. Permissiveness, leniency or zero-tolerance approaches can all be formed and maintained by an organization’s leadership and response.

2. Is sexual harassment seldom reported within your company or workplace? If there has been silence on this matter, do not interpret sexual harassment being a non-issue. Consider the overwhelming trend of underreporting and its misleading impacts. Underreporting may be caused by a number of reasons (i.e. lack of reporting mechanisms and robust sexual harassment and violence policies, lack of confidence in policies and the administration of these policies, the harasser may be a superior, the target may experience job and financial vulnerability, or the target does not believe that the harassment rises to the level which warrants a complaint) and leads to the inaccurate perception that it does not occur.
3. There is a clear gap and inconsistency between executives’ perceptions and reality. When considering policy development, amendment, implementation or reviews, thought must be given to whose perspectives are being relied upon. Do the decision makers have an accurate snapshot of the realities “on the ground”? Is there a diversity of perspectives, or does there exist one homogeneous group of thinkers? To avoid this, consult the research and trends, seek out different perspectives and conduct proactive workplace assessments to understand the realities of the workplace before complaints arise.

About the Authors: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.

Maria Luisa Vitti is Rubin Thomlinson’s first ever articling student. Maria Luisa provides support to the firm’s investigation practice.