Creating the culture of choice
Sexual harassment: Recognizing it. Dealing with it.
From the Equity Ombudsperson; Anne Bhanu Chopra
I’m introducing a series of articles to help lawyers create in their firms what I call “the culture of choice” — essentially a workplace where everyone feels they belong. In this culture, people know they are expected to act professionally and respectfully, to treat each other fairly and to do their very best.
Instilling these values in your workplace is not a luxury — it is the right thing to do and it is essential for people to stay productive.
A fair and equitable workplace does not tolerate sexual harassment, a form of gender discrimination. As the Equity Ombudsperson for the last six years, I have seen common themes emerge — and harassment is one of them. Many law firms have policies to deal with sexual harassment, yet people in the firm still may not be aware of what these mean from a practical perspective. The firm may never have received a complaint under the policy, yet a problem may still exist.
I have discovered a lack of clarity as to what behaviour is acceptable and not acceptable under some harassment policies. I have received many calls from people who are unsure if a workplace problem they face amounts to sexual harassment and just how a complaint would be addressed.
To move your firm toward a culture of choice, you’ll want to do more than adopt workplace polices. You’ll want a wide understanding of the meaning of those policies and a commitment among your colleagues and staff to adhere to them. In subsequent columns, I will show how firms can tackle various forms of discrimination. In essence, you have an opportunity to push aside an old, outdated culture to make room for a new one that will serve you better.
What is sexual harassment?
In Janzen v. Platy Enterprises Ltd.  1 SCR 1252, the Supreme Court of Canada concluded that: “… sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”
Despite this definition, subsequent case law and heightened public awareness, sexual harassment continues to have significant impact on lawyers, students and staff in the workplace. It also remains a somewhat cloudy concept for many.
From a practical perspective, sexual harassment means unwelcome sexual advances, requests for sexual favours and other verbal or physical behaviour of a sexual nature when:
- submission to the behaviour is used as a term or condition of employment;
- submission to or rejection of the behaviour is used as the basis for an employment decision; or
- the behaviour has the purpose or effect of interfering with an individual’s work performance, or creates a hostile or offensive environment.
When any unwelcome or unsolicited sexual conduct is imposed on a person who regards it as offensive or undesirable, it is sexual harassment.
The five common types of sexual harassment:
Sexual harassment is typically directed at women, but men can also be victims. Here is a brief description of the five common types:
1. Threatening – A person is threatened or offered rewards — promotions, raises, etc. — in return for sexual favours. A direct or implied threat often accompanies such a proposition, making it clear that the victim’s career will be jeopardized if he or she doesn’t comply with the request.
2. Physical harassment – This occurs when a person is unwillingly touched. Some examples of physical harassment include, but are not limited to: touching a person’s clothing, hair or body; hugging, kissing, patting or stroking; massaging a person’s neck or shoulders; or standing close to or brushing up against a person.
3. Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer.
4. Non-verbal harassment (body language) – Examples of non-verbal harassment include: suggestive looks; prolonged staring; giving unwanted personal gifts; winking and making sexual gestures with the hands or body movements.
5. Environmental harassment – Sexually suggestive pictures or objects displayed in the workplace may offend people. These items depict women or men as sex objects. It is important to note that, if your office is a place where others have to enter to do work, you must ensure that you are not causing a hostile or offensive environment.
Sexual harassment is harmful, not only to the perceived victim, but to the entire workplace. It can cause staff turnover, absenteeism, low morale, reduced productivity, loss of firm reputation and costly litigation or human rights complaints, as well as stress and problems to the general health of the people involved.
Dealing with harassment
As a complainant : After you recognize that a behaviour constitutes sexual harassment, you have a number of options:
- Sometimes a person is unaware that his or her behaviour is offensive until someone points it out. If the behaviour is an isolated event and might have been unintentional, consider telling the person politely, but firmly, that it bothered you and ask him or her to stop.
- Follow an internal procedure within your firm to report the behaviour.
- Contact the Equity Ombudsperson to assist you with your options on a confidential basis.
- Consider mediation.
- Make a formal complaint to the Law Society.
- Make a human rights complaint and/or a civil action.
Law firm partners (employer): If you are a partner in a firm and you observe questionable behaviour directly or receive a complaint, you must respond, seriously and in a timely manner. The Equity Ombudsperson can assist your firm on a confidential basis.
Lawyers also have a professional obligation not to engage in sexual harassment, or other forms of discrimination, as set out in Chapter 2 of the Professional Conduct Handbook.
Preventing sexual harassment
We are all responsible for helping maintain a work environment free from sexual harassment. The first step is prevention. Whether you are a partner, associate, student or a staff member, there are several things that you can do to prevent sexual harassment.
For everyone in the firm :
- Monitor your behaviour. Think about how your words and actions might affect others’ self-esteem, job performance and attitudes toward work.
- Observe what goes on in your work area. If you suspect that inappropriate conduct is occurring, tell the personal responsible for addressing the conduct.
- Dress and carry yourself appropriately for your job.
- Don’t smile, laugh at or encourage harassing behaviour.
- Become acquainted with your internal firm policy on sexual harassment.
For partners and associates with supervisory responsibilities:
- Educate employees about sexual harassment through informal or formal discussions and/or training; or by distributing a copy of your firm’s policy for dealing with sexual harassment to everyone in your working group.
- Promote a safe and respectful work environment by encouraging employees to tell harassers to stop and by publishing polices on respectful workplace behaviour.
- Take all allegations of sexual harassment seriously. If any member of the firm comes to you with a complaint, take action right away.
What kind of behaviour is okay?
Even after learning the definition of sexual harassment, many people still find themselves asking what kind of behaviour isn’t sexual harassment. For example: Is it okay to hold a door open for a woman? Will I get in trouble if I compliment someone on their clothing or their new hair style? Is telling an off-colour joke considered sexual harassment?
While there aren’t always clear-cut answers to questions such as these, ask yourself the following questions:
Would I want my daughter, wife, sister, son, brother or husband subjected to this behaviour?
Is the behaviour likely to intimidate or belittle the recipient?
Is it possible that the behaviour would be misinterpreted?
The bottom line is fairly simple. If you are in doubt about whether something might amount to sexual harassment, don’t do it!
Next time, I’ll take a closer look at sexual harassment scenarios that can arise in law firms, as in any other workplace. If you have questions about sexual harassment or other forms of discrimination, or would like assistance, you can contact me, Anne Bhanu Chopra, on my confidential, dedicated telephone line at 604 687-2344 or by email to firstname.lastname@example.org.