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Too scared to say #MeToo: Are you the silencer?

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Workplace Investigation Fundamentals
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If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you are not alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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I recently attended a talk at Hot Docs on the book ‘Had it Coming: What’s fair in the Age of #MeToo’ authored by journalist Robyn Doolittle. In this book, Doolittle challenges the social attitude around sexual behaviour and sexual assault. She advances the notion that the “laws aren’t the problem,” as Canada has some of the most progressive sexual assault laws.  Instead, the problem is our attitudes, more particularly the negative attitudes of police officers and those in the justice system, and the myths that pervade those institutions. These attitudes have adversely impacted the way sexual assault complaints are handled in Canada.

As I listened to her speak and read her book, I considered whether the same problem can be said to exist in the workplace as it pertains to harassment and sexual assault complaints. Certainly, there have been significant advancements in the law as employers are responsible for providing a safe work environment for their employees, and as part of that responsibility they are now mandated to investigate complaints of sexual harassment. In fact, more developments are on the horizon through Bill C-65. So it’s safe to say, the law is not the problem and in any event, most companies today have internal policies that mirror or closely align with the law. The mechanisms are there to protect victims. So why are the numbers of unreported cases so staggering?

An answer is proffered in the 2016 report from the US Equal Employment Opportunity Commission – Select Task Force on the Study of Harassment in the Workplace where it states:

“Employees who experience harassment fail to file a complaint because they anticipate and fear a number of reactions – disbelief of their claim; inaction on their claim; receipt of blame for causing the offending actions; social retaliation (including humiliation and ostracism); and professional retaliation, such as damage to their career and reputation…Other studies have found that sexual harassment reporting is often followed by organizational indifference or trivialization of the harassment complaint as well as hostility and reprisals against the victim”.

What this tells us is that the problem is not the law or policies, the problem is negative attitudes or more so, the culture of the workplace. The law and internal policies against harassment are not enough to limit or stop harassment without more. To answer Doolittle’s question of what’s fair in the age of #MeToo – there needs to be a change in the culture of organizations. Your culture or organizational attitude may be silencing potential victims.

The success of the #MeToo movement is seen to be a result of the recent shift in the societal attitude towards sexual harassment. Our culture is changing and that change needs to transcend into the workplace. The question becomes: if policies and laws don’t do it, how do you change the culture of an organization? That’s the right question but the answer will vary based on your organization. Each organization is different and the issues that exist will differ.

The first step to changing the culture is finding out what is happening in your workplace. Don’t wait for a complaint! In our experience, there is a lot that goes unsaid – so don’t get too excited about the fact that you have few or no harassment complaints. Sometimes, all the employer sees is low productivity, employee turn-over and rising tensions, but the employer doesn’t know why. Check the temperature of your organization. This can be achieved through periodical assessments. An assessment is a participatory exercise wherein employees have an equal opportunity to voice their concerns about specified issues without having to face the rigours of a formal complaint. Employers also have a chance to know exactly what is going on in their workplace. An assessment can be done internally or through an external assessor.

Once you have done the assessment, you cannot leave it there. You must now act on the information you have received. The responses from the employees will inform what practical steps need to be taken to influence the desired change. An important factor is that action must be seen to be coming from the top down. Employees are more likely to buy into change if they see that change starting from the top. Even if they don’t buy into it per se, where there is evidence of a change in attitude and a noted genuine intolerance for bad behaviour, the likely effect will be deterrence. Culprits will think twice about their actions and victims won’t have to think twice about lodging a complaint.

In addition to assessments, it is also important to educate your employees. Very often, negative attitudes, stigmas and stereotypes exist because people don’t know what harassment actually is, whether sexual or otherwise. They have a very limited view of what can constitute harassment. For example, everyone will likely agree that grabbing someone’s genitals or a woman’s breast will classify as sexual harassment or assault. But what about subtle nuances like suggestive, unwelcomed comments? The potential response may be “that’s not something to mess up someone’s career for” or “that wouldn’t have happened if you didn’t put yourself in that position” or “you know how they are, they don’t mean anything by that”. On the flip side, the alleged harasser may not even realize that their conduct runs afoul of the law or policy.

In order to change this culture, organizations have to educate their employees. It is not enough to circulate a policy with definitions, employers must explain in a practical way what those definitions may cover.

Finally, remember that you’re dealing with human beings. In an age where there are many laws, policies and obligations, it is very easy to become overtly clinical when handling harassment complaints. For the complainant and the respondent, this can be a life-altering experience. It is therefore important that the organization provides the necessary support. Don’t further victimize complainants but don’t go to the other extreme of declaring guilt before doing a proper investigation.

The culture that is cultivated must be seen to be balanced, fair and safe for all employees.