The New Corporate Culture: lessons learned from the #MeToo movement

Christine M. Thomlinson
Rubin Thomlinson LLP

The #MeToo movement has shined the spotlight on toxic workplace conditions that some women have faced for decades. If there has been any bright side, perhaps it is that many employers have looked critically at their own workplace cultures in an attempt to determine whether they are truly inclusive and welcoming for all. Unfortunately, the reality is that many are not. Since the movement first started gaining traction, we have encountered employers who have commented with relief that they don’t have any problems with harassment in their workplaces because no one has ever complained. However, we often find ourselves wondering about the possible naiveté of these comments. The fact is, far too often, we go into workplaces where the employer is operating on such an assumption and we find a culture of harassment so deeply embedded that employees are afraid to come forward and complain.

In a society where the media is increasingly punishing of organizations that turn a blind eye to harassment, what is a well-intentioned employer to do if they truly want to tackle the problem? In an attempt to answer this question, the United States Equal Employment Opportunity Commission convened a select task force that issued a report in 2016 after studying harassment in the workplace (the “EEOC Study”). One of the major findings, not surprisingly, was that harassment often goes unreported. The EEOC Study found that roughly 75% of individuals who experienced harassment never even talked to a supervisor, manager or union representative about the behaviour, much less reported it formally. This is consistent with the results of an Angus Reid survey of Canadian employees released in early 2018 in which 72% said they had declined to report on harassment in their workplace. The employees’ reasoning varied widely but included many legitimate reasons, such as fear of disbelief in their claim, shame or self-blame, and/or fear of social or professional reprisal.

Team meeting

Another finding from the EEOC Study that came as no surprise was that harassment remains a persistent problem. However, it might be easy to forget in the wake of the headlines over the last year that the problem is not limited to sexual harassment; it also includes unlawful harassment based on race, disability, age, ethnic/national origin, colour and religion. As can be seen throughout this issue of Lēad Magazine, the benefits of diversity and inclusion are well-studied and documented. If an employer wishes to tap into the unlimited potential of diversity, part of their strategy has to be tackling harassment in the workplace. We know that diverse employees are more vulnerable to harassment, and that, as a result, this behaviour disproportionately negatively affects these individuals.

The EEOC Study recommended specific areas on which employers should focus if their objective is to truly tackle harassment in the workplace. Anecdotally, we can confirm that those employers with whom we work who employ the strategies below boast healthier workplace cultures and less legal problems associated with harassment in their workplaces.

1. Conduct surveys or assessment to examine culture.

Waiting for complaints doesn’t work. Employers that seek to combat harassment in the workplace have to be proactive and ask their employees about their work experience. An increasing number of our clients contact us looking to take this step, some on receipt of informal “grumblings” or rumours about problems, but others just because they believe it’s the right thing to do. In almost every case, we learn something through these processes that comes as a surprise to the organization. Following such a process, the organization can demonstrate its commitment to diversity by proactively addressing the issue, rather than waiting for someone to bring it forward.

2. Hold managers and leaders accountable.

We have seen many senior leaders ousted from their organizations recently for their own bad behaviour. But what about those leaders who knew about the behaviour and did nothing to address it? Increasingly, the media is equally concerned about organizations where cultures of harassment are known about and tolerated. In fact, some shareholders are exploring legal action against boards of directors for such inaction. If an organization truly wishes to address harassment, they must ensure that senior leaders are responsible for creating and maintaining cultures of respect and are held accountable when they fail to do so.

3. Take investigation outcomes seriously and consider more transparency.

Nothing sends a stronger message to employees about an organization’s ambivalence towards harassment than a workplace investigation that results in no action. Recognizing the barriers that employees face to report harassment, it can be devastating to a corporate culture when those with the courage to report harassment do so and the end result suggests that nothing was done. Not only must employers take investigation outcomes seriously and act on the results, they must begin to consider how they can be more transparent with their employees about steps taken post-investigation. For years, employers have been so concerned with protecting the privacy rights of the parties that they have tended towards complete secrecy about the outcomes. The problem is that this leaves many within the organization believing that no action was taken at all.

4. Revisit training and rethink the model and delivery.

The EEOC Study found that most of the harassment training done over the last 30 years has been too focused on avoiding legal liability to be effective. Instead, to be effective, training must be tailored to the specific workplace and the employees in it, and it must be in-person to allow employees to ask questions and facilitators to gauge employee understanding. Employers should consider training managers and supervisors specifically to provide them with the tools necessary to recognize signs of harassment when it is occurring, not just when it is reported. Consideration should also be given to mobilizing all employees to be on the lookout for harassment through bystander training. Of course, given the limited training budgets that many organizations set aside for “harassment training,” the idea of adequate resourcing for harassment prevention also needs to be reconsidered. When the cost of harassment1 is measured against the cost of more robust training programs, this would seem a worthwhile investment.

For years, employers could “tick the box” and say they were addressing harassment by doing something, regardless of what that “something” was and whether it was actually effective. The same would appear to hold true for diversity initiatives. For those organizations wishing to create truly diverse and inclusive workplaces, meaningful harassment prevention must be a part of this overall strategy.

1 According to the EEOC Study, in 2015, the EEOC alone recovered $164.5 million for workers alleging harassment.

Christine M. Thomlinson, Co-founder & Co-managing partner, Rubin Thomlinson LLP

Christine M. Thomlinson

Co-founder & Co-managing partner, Rubin Thomlinson LLP

Christine Thomlinson, BA, LL.B, is the co-founder and co-managing partner of Rubin Thomlinson LLP, recognized again in 2018 by Canadian Lawyer Magazine as one of the top 10 Labour and Employment Law Boutiques in the country. Christine is recognized as one of Canada’s leading employment lawyers and is included in the Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada. In 2016, Christine was awarded the Lexpert® Zenith Award for her contribution to diversity and inclusion in the legal profession.

Christine is considered a leading authority in the area of workplace harassment, workplace investigation and workplace reviews. Her expertise is reflected in the best-selling Human Resources Guide to Workplace Investigations, now in its second edition, written by Christine and her partner, Janice Rubin, as well as in the extensive training curriculum they have developed to enable employers to conduct effective workplace investigations under increasing regulatory scrutiny.

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