Ensuring a safe workplace for everyone
Sexual harassment is very much in the news - and construction job sites are not immune to it
December 4, 2018 by John Bleasby
Employers in Canada have a responsibility to create and maintain a workplace free from harassment and violence. It’s as simple as that. However, today it’s more than just a matter of bullying in the workplace. With more female workers entering the home building and renovation trades, it has become increasingly a matter of protection from sexual harassment.
Sexual harassment concerns are by no means restricted to the construction industry — The issue is front and centre in the news on many fronts. For example, the RCMP is currently dealing with dozens of outstanding and apparently unresolved sexual harassment complaints within the force itself. The entertainment industry in both Canada and the United States has seen numerous high profile incidents exposed. Public perceptions have shifted rapidly, with sympathies mostly falling to the victims.
What defines sexual harassment?
The Supreme Court of Canada defines sexual harassment 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.” The Court leaves open the various forms of sexual harassment, which makes pinning it down a tricky issue. On a job site, cat-calling, whistling or explicit sexual remarks are obvious. But what about the not-so-obvious?
In a recent Globe and Mail report, Daniel Lublin of law firm Whitten & Lublin suggests that many common interactions today risk being interpreted as sexual. However, the key is that the interaction was truly sexual in nature and unwelcome. Lublin offers two examples: co-workers who agree to go for dinner after hours, after which an unwanted sexual incident takes place; or a suggestive text or email is sent to a co-worker over the weekend. Legally speaking, there could be grounds for a legitimate sexual harassment complaint in both cases involving the company. It could even be a single, isolated incident — a hug at a Christmas party — not necessarily an ongoing pattern of behavior. As Lublin writes, “This is the main objective of workplace sexual harassment laws – employers are made responsible to govern the conduct of their employees, including conduct that technically arises outside of the office.”
(To read Lublin’s full article, CLICK HERE)
It makes today’s construction work site more complicated for employers, given the higher number of females entering what has been traditionally a male-dominated industry. Clearly no employer would want any employee exposed to such harassment, not to mention the negative publicity that could result from a complaint.
What should an employer do in advance?
Employers need to set them themselves up correctly by putting in place policies and, if necessary, training in order to create a safe working environment.
This might include:
*Properly defining what constitutes harassment and violence
*Identifying the possible sources of harassment and violence in the workplace, including from customers, fellow workers, domestic partners of workers etc..
*Outlining the roles and responsibilities of the workplace parties
*Processes to report incidents of workplace violence or harassment
There should also be an outline describing how incidents will be investigated and dealt with, assurances that information about the complaint and the individuals involved will not be disclosed unless necessary, and a process by which the worker who has made the complaint will be informed of the results of the investigation
Someone has made a complaint. What happens next?
There are both federal laws and provincial laws that set out guidelines as to how employers should handle a sexual harassment complaint in the workplace. First, it must be addressed. Second, it must be investigated promptly, and by someone not directly involved, possibly an outside party to the company in order to dispel any bias. Third, all witnesses, or those party to the complaint in some way, must be interviewed privately. Fourth, a report must result that outlines whether harassment has or has not taken place, and if so, what steps will be taken.
What are the possible outcomes?
If it is established that harassment has occurred, the employer must take action. The possible outcomes can vary based on the nature and seriousness of the complaint. These could include employee training, the transfer or termination of the violating employee, mediation between the parties, and a formal apology.
Some provinces have specific sexual harassment legislation under their respective Human Rights Codes: British Columbia, New Brunswick, Ontario, Prince Edward Island, and Quebec. Alberta, and Saskatchewan cover the matter under their provincial occupational health and safety legislation.
Nevertheless, there are federal requirements under the Canada Labour Code that protect all workers, no matter in which province or territory they work. A helpful Q &A on the subject can be found by CLICKING HERE.
Bottom line: Contractors, particularly those with female employees, need to get ahead of this issue.
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