Authored by Catherine Willson.
Unless you live under a rock, you are aware that in the last three months the ground has shifted on sexual harassment. Women are standing up like never before and saying, “Enough is enough!” The Construction Industry is no different than the other industries we are reading about in the news. In addition, being a male dominated industry, we can probably assume that, for women, harassment at work has been commonplace.
What is Sexual Harassment?
According to the Ontario Human Rights Code, harassment includes engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. One incident is sufficient. Sexual harassment can be defined as unwanted behaviour of a sexual nature which can violate your dignity or make you feel intimidated, degraded, humiliated, or creates a hostile or offensive environment.
There are subjective and objective elements to the test for harassment. The subjective elements include the harasser’s own knowledge of how the behaviour is being received as well as the reaction of the person to whom the actions or words are directed. The objective component considers the behaviour from the point of view of a reasonable third party observer.
Sexual harassment is simply harassment that takes on a sexual or gender-based tone and can include the following actions:
Sexual jokes, rough or vulgar humour;
Language related to gender;
Demanding hugs or invasion of personal space;
Using derogatory or paternalistic language such as honey, dear, sweetie and other terms meant to diminish;
Questions or discussions about sexual activities;
Requiring an employee to dress in a sexualized or gender specific way;
Bragging about sexual prowess;
Propositions of physical intimacy or unnecessary physical contact including unwanted touching; or
Leering or inappropriate staring.
The list goes on and on.
The person being harassed does not need to acknowledge the behaviour. He or she could simply withdraw or walk away in disgust after a co-worker has asked sexual questions.
In construction, sexual harassment may not be an overt and obvious incident. It could simply be the odd comment over time that builds and builds to create a working environment that is discriminatory against women or others.
How far has this movement swung? Theoretically, telling a women she looks pretty while at work could be construed as sexual harassment. You certainly wouldn’t say that to your male colleague.
Fire First, Ask Questions Later
Prior to the #MeToo movement, if an employee made a complaint of sexual harassment, an investigation would be performed pursuant to the Workplace Harassment Policy in effect in the workplace. If the allegations were found to have substance, consequences would follow from the investigation that could include apologies, training, reassignment, suspension, or dismissal.
In today’s environment, employers are being advised to fire now and ask questions later. In other words, the employee is fired based on unproven allegations. The thinking is that there may be less liability for an employer to dismiss the alleged harasser immediately, and face the consequences if the allegations of harassment are unfounded, rather than to continue the employment of the alleged harasser and run the risk of increased exposure and negligence for failing to take proactive measures, especially where the alleged perpetrator later harasses another employee.
What Employers should do:
- Employers have to be aware of this obvious and all too common occurrence in the workplace and on project sites, and be ready to act quickly when complaints are made or bad behaviour is witnessed. It should not be left just to women to complain. We should have each other’s backs.
- Employers should consider more training in their workplaces to make people sensitive and aware of this new normal. Without appropriate training and understanding of what is and is not appropriate, a condition of fear and misunderstanding can overtake the workplace and cause division between employees.
- Reverse mentoring could work where senior figures are guided by more junior employees or colleagues. This problem includes conduct and ideas held on an almost unconscious level that impact interactions between us. People with training in this area could help managers to identify and perceive hostile behaviour towards women which may simply not be on the radar of any workers but the women.
- A hotline could be set up maintained by a third party outside of the company to field complaints regarding harassment in the industry without fear of negative repercussions. With more visibility, the construction industry would be better equipped to recognize, challenge, and prevent harassment. Perhaps an association could take this on.
- Where allegations have been made against an employee of your company, consult with your lawyer to determine whether you should fire first and ask questions later or follow your harassment policies. Both approaches have their risks.
This genie is not going back in the bottle. Men and women are going to work together as equals and workplaces in society are going to be a better place because of it. I think we are just learning a new language and removing some unwanted and anachronistic behaviours so we can work together as equals without intimidation or misunderstanding.
Up until now, women have basically tolerated the minor affronts and the sometimes terrible behaviour because they felt they had to whether it was fear of job loss or loss of advancement or loss of reputation in the industry. At this point, it appears that women are not going to tolerate this behaviour anymore.
Contact Catherine at: willson@gsnh.com, 416-597-6488
This information deals with complex matters and may not apply to particular facts and circumstances. The information reflects laws and practices that are subject to change. For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.