Sexual harassment: Managing the risk

publication date: Dec 3, 2014

Joel SecterWe were recently asked to oversee a risk management review for a client following an incident that took place at one of their fundraising events. While this article is not a substitute for legal or other professional advice, it will hopefully make good fodder for board discussions.

By way of background, the incident mentioned above occurred in Ontario at a large fundraiser of a national charity. Other than a handful of the charity’s staff, the event was completely run by volunteers. Without getting into the nitty-gritty, suffice it to say that an older man’s conduct with a girl under the age of 18 was inappropriate enough to allege that sexual harassment had taken place. The point here is not to establish wrongdoing, but rather to provide a real life example of the kinds of incidents that occur in offices and at events all the time. It just so happens that in this case the young girl left the fundraiser and told her parents what had happened. They in turn called the police.

So what is an organization supposed to do to manage the risks associated with sexual harassment? Well, there are a number of things that may be appropriate, depending on the purpose of the organization and its activities, ranging from adopting a “Respect in the Workplace Policy” to offering training to workers to carrying adequate liability insurance.

Implementing a new policy

While the word “policy” does not appear in laws such as the Canada Not-for-profit Corporations Act or Ontario’s Not-for-profit Corporations Act, operational policies are often used by no-share corporations to complement their governing documents (i.e letters patent/articles and by-laws). If policies are going to be used, it is important to ensure that their authority is established in the general operating by-law of the organization. The by-laws may provide that the board of directors can adopt, amend, or repeal any policy that is not inconsistent with the by-laws or, alternatively, the by-laws may provide that policies require approval of the members.

Regardless, moving to a “Respect in the Workplace Policy” document is something that must be done with a view to Canadian human rights law. A national organization’s policy, for example, will need to consider the human rights legislation in each province or territory in which it operates. The Ontario Human Rights Commission has published a policy on preventing sexual and gender-based harassment, which may be helpful to Ontario organizations looking to develop their own policy statement. By way of example, suggested contents of an anti-sexual harassment policy include:

  • a description of who the policy applies to;
  • how internal complaints will be handled; and
  • remedies available if claims are proven.

For organizations that choose to adopt such a policy, it is important to ensure that people are made aware of its existence. For example, members should be informed about the policy when they become members or when the policy is subsequently adopted by the organization. Even organizations that do not adopt a policy on sexual harassment would be wise to consider procedures for dealing with such complaints.

Educate your staff

Along these lines, people may need to be educated on human rights issues and what to do in the event of a complaint. Anti-sexual harassment training may be an appropriate next step for creating a healthy work environment. Depending on the circumstances, training could be offered to people in positions of responsibility only or to anyone who volunteers with the organization. Presumably, the need for training will be greater in organizations where there is a history of sexual harassment. The important thing to consider is whether the organization’s employees or volunteers, as the case may be, have adequate resources, training and tools to effectively monitor for sexual harassment and to identify and report incidents when they occur.

Get insurance

Adequate insurance coverage is another important way to manage the risk to organizations and their directors and officers. Readers are encouraged to review their organization’s insurance policy, if any, and to set-up a meeting with their broker. In our experience, insurance coverage often contains limitations, which may include:

  • exclusions of coverage for sexual harassment;
  • limitations on who is covered under the terms of the policy; and
  • exclusions where the organization has failed to inform the insurer in a timely fashion.

While many insurance policies cover injury to volunteers, not all cover for losses caused by volunteers. For this reason, a thorough review of the policy is necessary to ensure that there is adequate coverage in place. If the organization’s current policy does not provide protection for sexual harassment, the board of directors should be made aware of this lack of coverage.  

In summary

Charities and non-profits are encouraged to evaluate their risk to exposure of claims of sexual of harassment. Where there is a risk, it may be advisable to develop and adopt a “Respect in the Workplace Policy” in accordance with the applicable human rights legislation. Providing training to employees and volunteers is another way to help reduce the likelihood of incidents occurring and to educate people on how to respond when an incident does occur. Finally, assessing and maintaining appropriate insurance coverage for the organization and its directors and officers is essential.

Joel Secter is a lawyer with Drache Aptowitzer LLP in Ottawa. He can be reached at jsecter@drache.ca.

 



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