What to do about sexual harassment on the job

  • January 23, 2019
  • James Careless

When the CBA Women Lawyers Forum launched its Not Just a Bystander initiative a couple of years ago, it made a solemn vow: in return for stories about the on-the-job harassment experienced by its members it promised absolute anonymity.

Even in the #MeToo era, there are still lawyers in management positions who overstep sexual boundaries with their subordinates, but reporting that behaviour can be a career-limiting move.

This is why young lawyers are vulnerable to sexual harassment, says Elizabeth Aspinall, a practice advisor and equity ombudsperson at the Law Society of Alberta.

“If they raise an allegation of harassment, sexual or otherwise, they worry that their career will suffer,” Aspinall says. “They won’t get to work on big files, they won’t get to work with certain lawyers, and subtle pressures will be applied to make them leave – that is, if they are not simply let go.”

And while changes to legislation are in the works to remove some of that vulnerability, Aspinall notes that sexual harassment is already a contravention of the law society’s Code of Conduct.

Sexual harassment is a classic form of bullying. Technically, it can range from an offhand comment about a person’s clothing or physical appearance, to sexual references during workplace conversations, to unwanted touching, right up to physical/psychological intimidation and sexual assault.

It doesn’t have to be big and obvious to be harassment – in fact, it probably won’t be.

“You should not discount your feelings if you are made to feel uncomfortable because of your sex; whether that’s a ‘joke’, or how someone touches you – because there should be no touching,” says Rebecca Saturley, managing partner in Stewart McKelvey’s Halifax office. “If there’s any of that stuff and you feel uncomfortable, there’s probably a problem.”

“When it comes to sexual harassment, you don’t need to qualify the experience,” says Shannon Friesen, principal and senior HR consultant at ACTivate HR in Calgary. “You know when it is happening to you.”

Once you’ve admitted to yourself that workplace sexual harassment is a problem, there are a number of ways to respond.

“One option is to tell the harasser that their comment or conduct is unwelcome, as soon as something is done that constitutes sexual harassment,” says Gail Gatchalian, Past Chair of the Canadian Bar Association’s National Labour and Employment section and a partner with Pink Larkin in Halifax. (She also chairs the CBA-NS Sexual Harassment Work Group.) “This means speaking up and saying something like ‘that’s disgusting,’ or, ‘I don’t appreciate that. I want you to stop.’”

Unfortunately, the deliberate deflections that sexual harassers can cloak their inappropriate comments and physical actions in – “I was only kidding!” or “I was only touching you to express my sympathy and support” – means that some victims can find themselves caught in a cycle of verbal/physical harassment before they realize what is being done to them.

When this happens, if the level of intimidation from the harasser isn’t too overwhelming to deal with, speaking up may still make a difference.

This is when appealing to a higher authority is likely the best option; be it a direct superior (or the person above that person, if the superior is the harasser), Human Resources, or the law society. When deciding which authority to approach, you should consider how the complaint will be received by this person/office and their ability/willingness to seek justice for the victim.

In Ontario, “Young lawyers who feel that they have experienced sexual harassment by a lawyer, paralegal or student member of the Law Society should contact the Law Society’s Discrimination and Harassment Counsel,” says Gelek Badheytsang, the Law Society of Ontario’s Communications Advisor. “The DHC will help you by listening to your concerns, clarifying the issues, providing confidential information and advice, and reviewing your options and avenues of recourse – such as, for example, filing a complaint with the Law Society of Ontario or filing an application with the Ontario Human Rights Tribunal.”

In Alberta, the Law Society can initiate a complaint if the law student or lawyer doesn’t want to go on the record as the complainant, says Aspinall.  The downside is that the person who made the report is  downgraded to a witness with no control over the case, and “the (offending) lawyer will know who raised the complaint in any event, so it does nothing to dispel the vulnerability,” she noted.

The fourth option is to quit working at the harasser’s firm, and go elsewhere. In cases where the severity of the assault makes waiting for help either too stressful or downright dangerous, it may be the best choice until disciplinary/legal action against the harasser can be taken.

Another option, which is no option at all, is to do nothing and hope that it goes away. But since harassers tend to view silence as compliance, chances are that it won’t.

If harassment reaches the point where a complaint seems inevitable, victims should document the behaviour as much as possible, including emails, phone conversations, and any other evidence that could be of use.

Be sure to seek and find witnesses to any questionable interactions. As any good lawyer knows, proof matters. The CBA-NS Sexual Harassment Work Group is currently developing a Bystander Training Program to help supporters of sexual harassment victims intervene constructively to interrupt and stop sexual harassment.

No one has to endure sexual harassment in the workplace. Sexual harassers can be called out, shamed, disciplined, and stopped – and the more this happens, the better young lawyers will be able to protect themselves and their careers from these malign attacks.

James Careless is a frequent contributor to PracticeLink

Useful Links:

The Federation of Law Societies of Canada’s Interactive Model Code of Professional Behaviour. This is a guide to the sexual harassment policies of all law societies in Canada.

The CBA’s podcast on sexual harassment and sexual assault, “Not Just a Bystander’.

How the Law Society of British Columbia disciplined a small firm lawyer for sexual harassment.

The Law Society of Ontario’s Discrimination and Harassment Counsel.

A report on sexual harassment at the New Zealand law firm Russell McVeagh, and how they dealt with it.