Employer's Dual Obligations To ‘Believe The Women' And To Provide Due Process: How The #Metoo Movement Will Challenge Employers' Responses To Harassment Allegations

We have all watched the growing sexual harassment scandal roiling the American entertainment industry and causing the downfall of American political figures (with notable exceptions). Corporations and organizations across North America in numerous industries are dealing with an onslaught of credible allegations, some involving high profile employees and senior executives. Employers will be under pressure to act decisively perhaps from multiple sources (employees, media, shareholders etc.). Termination for cause will be the appropriate outcome in some cases but not in others. Legal advice should be sought from experienced employment lawyers early in the process to determine the appropriate remedy.

As trusted employment law advisors to employers and employees, we want to underscore that Alberta employers have a duty to keep their employees safe from sexual harassment. At the same time, it must be remembered that employers also have a duty to conduct a fair investigation without a rush to judgment. After briefly discussing exactly what sexual harassment is, we will review the scope of these duties, and best practices of employers to safeguard their employees.

What is Sexual Harassment?

In Alberta an employer has duties to keep employees safe from sexual harassment under the Occupational Health & Safety Act, RSA 2000, c O-2 and under the Alberta Human Rights Act, RSA 2000, c A-25.5. The Supreme Court of Canada in the seminal case of Janzen v. Platy Enterprises Ltd., [1989] SCR 1252 clearly enunciated what sexual harassment is: 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. Sexual harassment is not limited to demands for sexual favours, but also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions and inappropriate comments. Other authorities establish that sexual harassment can be either overt or discrete, and can include conduct of a physical, mental, psychological or verbal nature. It is not necessary that there be an intention to harass to establish harassment. The harassing conduct also does not need to be directed at a specific individual - the actions of their harasser can be such as to create a hostile or poisoned work environment. Sexual harassment usually has an element of persistence or repetition, although a particularly...