Law Times

Page 8 March 2, 2015 • Law Times www.lawtimesnews.com Lessons from the Ghomeshi case Situation may have broader impact on workplace harassment claims BY SHANNON KARI Law Times he criminal charges against Jian Ghomeshi are unlikely to go to trial until some time in 2016 at the earliest unless there's an unexpected resolution of the matter. But beyond the indi- vidual court proceeding and the impact on the reputation of the Canadian Broadcasting Corp., the publicity over the case may have a broader effect on the way employers deal with harassment claims in the workplace. The allegations against the former CBC radio host resulted in a wave of discussion, includ- ing about the way the public broadcaster reacted to them and the reporting of sexual assault and workplace harassment. According to lawyers who practise in the area, the in- creased spotlight and the fallout from how senior management at the CBC initially dealt with allegations against one of its best-known personalities have provided a number of lessons. Among the most important is the fact that the existence of a harassment policy and ensur- ing that employees know about it isn't sufficient. "One of the take-aways from this is that wilful blindness is not going to pay off in the long run," says Erin Kuzz, a partner at Sherrard Kuzz LLP in Toronto. The fallout from the alleged actions of the former CBC host has reverberated in a number of other workplaces, says Inga Andriessen, a Toronto law- yer whose practice includes employment litigation on the employer side. "There definitely has been an uptick in sexual harassment complaints since Ghomeshi," she says. Hoping the problem will go away isn't the answer. "Short of it being really minor, you need to take it seriously," says Andriessen. The allegations reported against Ghomeshi, outside of the criminal charges he's fac- ing, include a claim by at least one former female employee at the CBC who has stated he acted in a sexually inappropri- ate manner towards her in the workplace on more than one oc- casion. In a column in the Brit- ish newspaper The Guardian, the woman alleged her union was of little assistance and the executive producer of the show Ghomeshi hosted suggested she needed to cope with it since that was the way he was. The woman ended up resigning. The CBC says it fired Gho- meshi last fall after a meeting with two senior employees in which he showed video of what he said was consensual sexual activity that the public broad- caster has stated was graphic and violent. Soon after the allegations be- came public and before police laid any criminal charges against Ghomeshi, the head of English programming at the CBC said in interviews with the public broad- caster that there were no records of past complaints. Heather Con- way added the CBC had previ- ously done a "deep dive" into his human resources file that didn't turn up evidence of workplace harassment. At the same time, Conway retained Janice Rubin, a Toron- to employment lawyer, to inves- tigate. The CBC has said Rubin will produce two reports for senior management. One is spe- cifically about the Ghomeshi al- legations. The other is a broader review of the CBC's policies and practices related to harassment and respect in the workplace. Without commenting spe- cifically on how the CBC had initially handled the Ghomeshi situation, Kuzz says not taking action unless there's a formal complaint isn't acceptable. "An employer's legal obliga- tion kicks in the moment they know [about alleged harass- ment]," she says. "It doesn't mean there will always be something to find," she adds, suggesting employers must always take the allegations seriously. Amendments to the Occupa- tional Health and Safety Act that took effect in 2010 require em- ployers to have a policy in place about workplace harassment. But drafting the policy is only the first step, says Andries- sen. "It needs to be followed once you get the complaint. You can't punish a person for com- plaining," she adds. Andriessen suggests sepa- rating the complainant and the person who's the subject of the complaint at the workplace in order to reduce the possibility of more problems while an investi- gation is underway. In addition to the duty to in- vestigate fairly, there's also the reputation at stake of the em- ployee who's facing the allega- tions. "You are walking a fine line. You have two employees who could sue you" if the em- ployer doesn't address the com- plaint fairly, says Andriessen. If the target of the complaint is a more senior employee, a company should consider hir- ing an outside investigator, she says. Kuzz echoes that view. "You don't want an internal in- vestigation being open to any al- legation of a conf lict of interest," she says. Even for smaller- to mid- sized businesses, the expense of an outside investigator may still be cost-effective for the compa- ny in terms of avoiding litigation or a complaint to the Human Rights Tribunal of Ontario, says Andriessen. Once the allegations against Ghomeshi became public, there were leaks to the media of a number of internal memos is- sued to employees by senior executives. Meetings with a number of employees at once or memos while an investigation is still underway aren't a good idea, says Kuzz. "This could threaten the integrity of the in- vestigation," she says. While there may not be a duty on the employer to notify the authorities, if an allegation is serious enough that it could be criminal in nature, Kuzz says it should encourage a complain- ant to contact the police. LT If the target of the complaint is a more senior employee, a company should consider hiring an outside investigator, says Inga Andriessen. FOCUS ON Labour & Employment Law www.kuretzkyvassos.com Tel: (416) 865-0504 w Kuretzky_LT_Apr7_14.indd 1 14-04-02 9:08 AM T

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