Ghomeshi-gate: A Harassment Policy May Not Be Enough

On October 26, 2014, Jian Ghomeshi was fired from his position as a radio host with the CBC. The CBC alleges that, based on available evidence, it determined that Mr. Ghomeshi's conduct was a fundamental breach of the CBC's standard of acceptable conduct for an employee. Mr. Ghomeshi is being accused of sexual and physical assault. Mr. Ghomeshi has since brought an action against the CBC claiming damages for breach of confidence, defamation, punitive, aggravated, and exemplary damages. The Toronto Star reported:

The woman said she complained about Ghomeshi's behaviour to her union representative, who took the complaint to a Q producer. As the woman recalls, the producer asked her "what she could do to make this a less toxic workplace for herself". No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.

Both the employee and the employer have taken criticism. The employer likely had a workplace harassment and violence policy, but the existence of a policy has not stopped or been accepted as a full answer to criticism in the press. So what went wrong?

While we may never know what went wrong in this case, the answer in some cases is that employers can fail to adequately consider the feelings of the employee. The purpose behind Bill 168 on workplace harassment and violence is to create a better work environment. What a "better work environment" means comes from the employees themselves. To meet the purpose behind the law, an employer's policy should give employees an effective voice. The employer needs a way to obtain information about the employee's views or feelings and act upon it.

When drafting or reviewing workplace harassment and violence policies, it is important that employers target the following objectives and practices:

  1. Make sure the employee has a voice;
  2. Make sure that the policy actually makes the work environment a better place based upon what the employees identify as their concerns;
  3. Have a complaints process for when the employee wants to complain about the policy or how it is being implemented (or ignored);
  4. Offer alternative complaints processes where the complaint is against the individual whom the policy identifies as the person responsible for receiving or considering the complaint;
  5. Highlight that employees are welcome to provide general feedback about the policy (and how it is actually working) at any time;
  6. Have a mechanism for follow up to ensure that after a specified period of time each and every complaint has been addressed and any and all recommended resolution steps or actions have been completed; and,
  7. Build in active solicitation of feedback on the policy - whether through anonymous surveys, committees struck to revisit and update policies on a regular basis, or other opportunities.

A standard form harassment and violence policy may not always address the specific concerns of the employees in a specific workplace. Employers need to be engaged and flexible to improve their policies. Management needs to follow through on the policies. If an employer finds itself in front of the press or an adjudicative body, the scrutiny will not stop at the policy, but will extend to the conduct and practices of the people responsible for writing and implementing the policies.

Note: This a reprint of an article by Joyce Thomas of Lerners.