Written by: Catherine E. Willson, B.A., LL.B.
What employers need to know to prevent sexual harassment.
Unless you live under a rock, you are aware that in the last year the ground has shifted regarding sexual harassment. Women (and men) are standing up in outrage and saying “Enough is enough!”
The horse industry is no different than the other industries and sports organizations we are reading about in the news. In addition, with the power imbalance between coaches and students, we can probably assume that, for women and teens especially, harassment may be commonplace in this sphere as well.
What is sexual harassment?
According to the Ontario Human Rights Code (which is essentially the same across the country), harassment includes engaging in a course of vexatious comments or conduct that is known, or ought reasonably to be known, to be unwelcome. One incident is sufficient. Sexual harassment can be defined as unwanted behaviour of a sexual nature which can violate your dignity or make you feel intimidated, degraded, humiliated, or creates a hostile or offensive environment.
There are subjective and objective elements to the test for harassment. The subjective elements include the harasser’s own knowledge of how the behaviour is being received, as well as the reaction of the person to whom the actions or words are directed. The objective component considers the behaviour from the point of view of a reasonable third-party observer.
Sexual harassment is simply harassment that takes on a sexual or gender-based tone and can include the following actions:
- Sexual jokes, rough or vulgar humour;
- Language related to gender;
- Demanding hugs or invasion of personal space;
- Using derogatory or paternalistic language such as honey, dear, sweetie and other terms meant to diminish;
- Questions or discussions about sexual activities;
- Requiring an employee to dress in a sexualized or gender-specific way;
- Bragging about sexual prowess;
- Propositions of physical intimacy or unnecessary physical contact including unwanted touching;
- Leering or inappropriate staring.
The list goes on and on. The person being harassed does not need to acknowledge the behaviour. He or she could simply withdraw or walk away in disgust after a co-worker or coach has asked sexual questions.
In the horse world, sexual harassment may not be an overt and obvious incident. It could simply be the odd comment over time that builds and builds to create an environment that is discriminatory.
How far has this movement swung? Theoretically, telling a women she looks pretty while at work could be construed as sexual harassment. You certainly wouldn’t say that to your male colleague.
Shoot first, ask questions later
Prior to the #MeToo movement, if an employee made a complaint of sexual harassment, an investigation would be performed pursuant to the Workplace Harassment Policy in effect in the workplace. If the allegations were found to have substance, consequences would follow from the investigation that could include apologies, training, reassignment, suspension, or dismissal.
In today’s environment, employers are being advised to fire now and ask questions later. In other words, the employee is fired based on unproven allegations. The thinking is that there may be less liability for an employer to dismiss the alleged harasser immediately and face the consequences if the allegations of harassment are unfounded, rather than to continue the employment of the alleged harasser and run the risk of increased exposure and negligence for failing to take proactive measures, especially where the alleged perpetrator later harasses another employee.
In the case of a coach/student relationship, the decision to terminate or suspend the coach immediately in the face of unproven allegations of improper conduct is even more urgent. Coaches are held to a very high standard and often there are minors involved.
What employers should do:
- Employers have to be aware of this all-too-common occurrence in the workplace, and be ready to act quickly when complaints are made or bad behaviour is witnessed. It should not be left solely to victims to complain. They should have each other’s backs
- Employers should consider more training in their workplaces to make people sensitive and aware of this new normal. Without appropriate training and understanding of what is and is not appropriate, a condition of fear and misunderstanding can overtake the workplace and cause division between employees.
- Coaches should consider taking courses or other training on appropriate conduct with students, including social media conduct. Should you be texting or Snapchatting your students? What are you writing? Is it appropriate?
- On overnight trips for horse shows, etc., coaches had better think carefully about sleeping arrangements. How do you protect yourself from allegations of misconduct?
- Reverse mentoring could work, where senior figures are guided by more junior employees or colleagues. This problem includes conduct and ideas held on an almost unconscious level that impact interactions between us. Consultants with training in this area could help horse professionals to identify and perceive hostile or inappropriate behaviour towards women, in particular, which may simply not be on the radar of anyone but the women.
- A hotline could be set up and maintained by an association in the horse industry to field complaints regarding harassment in the industry without fear of negative repercussions. With more visibility, the horse industry would be better equipped to recognize, challenge, and prevent harassment.
- Where allegations have been made against an employee or coach, consult with your lawyer to determine whether you should fire first and ask questions later or follow your company’s harassment policies. Both approaches have their risks.
This genie is not going back in the bottle. Men and women are going to work together as equals and workplaces are going to be better because of it. I think we are just learning a new language and removing some unwanted and anachronistic behaviours so that we can work together as equals without intimidation or misunderstanding.
Up until now, people have basically tolerated minor affronts and even terrible behaviour because they felt they had to – whether it was fear of job loss or loss of advancement, or loss of reputation in the industry. At this point, it appears that this behaviour is not going to be tolerated anymore.