Lexpert Magazine

64 LEXPERT MAGAZINE | JANUARY/FEBRUARY 2018 highest office, despite repeated misogynis- tic remarks. Yet the Weinstein case seems to have marked a tipping point in the public dis- course, demonstrating that serious alle- gations may now bring down harassers, especially those with sexual overtones, regardless of status. Days aer the reports against him, Harvey Weinstein was fired from Miramax Studios, the company he co-founded. When talk show host Charlie Rose was accused by eight women of grop- ing, walking nude in front of them and making unwanted advances, he was fired by CBS, PBS and Bloomberg TV in less than 24 hours. But are North America's business lead- ers actually getting the message about what constitutes harassment, or how their employees — and perhaps even they them- selves — need to be restraining themselves and checking their behaviours? "I think there's a lot of training going on at Canadian companies," says Katherine Pollock, a Toronto partner with Fasken Martineau DuMoulin LLP who has helped large Canadian financial institu- tions implement harassment policies, and trains employees in areas such as properly conducting harassment investigations. Still, Pollock says that, at receptive com- panies, she has been able to tweak training specifically for senior and executive lead- ership. For them, Pollock says, there's an added dimension of "setting the tone for the organization; that the culture of the place has to emanate from them. And it was critical that they live the values set out in the policy and not tolerate, or be seen to be tolerating, any offside behaviour." at's not the norm, though. "I believe that companies could do a better job in ensuring top managers — who, aer all, have the ability to control the message and set the standards — are trained and under- stand that it is part of their role to effect cultural change when necessary," Pollock told Lexpert in an email. In an October Washington Post article, leadership columnist Jena McGregor wrote about a recent survey of more than 400 company directors and venture capitalists. It revealed that, despite the current bar- rage of sexual harassment allegations in the news concerning some icons of Hollywood and corporate America, nearly 80 per cent of those directors (many women) had not discussed those events within their firms. Almost 90 per cent had yet to implement any plan of action to mitigate the risks of harassment in their workplaces. at inaction at the board and execu- tive levels was cringe-inducing, says Janice Rubin. She did not speak to Lexpert spe- cifically about the CBC's handling of the Ghomeshi case. But she says the spate of sexual harassment cases in the US are an important reminder that, when Canadian companies attempt to change their work- place cultures to improve conditions for women, it must be a top-down process. Rubin says there can be a tendency "to let past bad behavior go," when individuals are the public face of a company or important to revenue generation. But Rubin says that kind of attitude is no longer permissible: "ere is not a free pass if you are in the C- suite. ... Having a policy that sets out what the behavioural expectations are for every- one is very helpful. But holding folks at the top accountable to the standards set out in the policy is key." For those responsible for implementing and overseeing anti-harrassment policies at a company — whether in-house coun- sel or HR personnel — it's also important that top executives visibly participate in training and discussions. "Otherwise other people don't take it seriously," says Shana French. Previously in-house counsel at a telecommunications company, French is now an employment and labour lawyer with Sherrard Kuzz LLP in Toronto. "It re- ally has to have buy-in from the most senior levels of management." at doesn't always happen, says Gal- lagher Healy. Oen, she notes, employers focus workplace training on front-line peo- ple. "ey don't as frequently refresh their managers and executives on those policies. ough that is not universal," she adds. The Law Leans In In post-Ghomeshi Canada, suggests French, there has been an escalating so- phistication in how Canadian companies deal with harassment. "e Ghomeshi sit- uation was our version of Weinstein," she says. "e Canadian pattern, particularly in Ontario, was a powerful response to that sort of golden boy, turn a blind eye atti- tude." at response came most tangibly in the form of legislation when, on March 6, 2016, less than two years aer the Gho- meshi scandal broke, Premier Kathleen Wynne's Liberal government passed Bill 132, the Sexual Violence and Harassment Action Plan Act. Among other things, Bill 132 amends Ontario's Occupational Health and Safety Act (OHSA) to expand the definition of "workplace harassment" to specifically in- clude the term "workplace sexual harass- ment." Human-rights policies in Cana- dian jurisdictions and workplace policies at companies throughout Canada oen include recommendations on discouraging various forms of harassment, bullying and workplace violence. But Ontario's legisla- tion under Bill 132, with its particularly sharp focus on sexual harassment, says Sha- na French, "takes this past cultural com- mentary to a legal obligation." e legislation requires all businesses in the province to develop and maintain a written workplace harassment policy. Such policies must include measures for report- ing harassment to someone other than an | IN-HOUSE ADVISOR: HARASSMENT IN THE WORKPLACE | JANICE RUBIN > RUBIN THOMLINSON LLP There is not a free pass if you are in the C-suite. ... Having a policy that sets out what the behavioural expectations are for everyone is very helpful. But holding folks at the top accountable to the standards set out in the policy is key.

• Cover
• front