Lessons From The Jian Ghomeshi Case: ‘There Is Nowhere To Hide’
Canadians' heads have gyrated to almost exorcist lengths by the quickly changing fortunes of Jian Ghomeshi. But what lessons can be learned?
- Pierre Trudeau was wrong. There is nowhere to hide, no respite removed from your employer's potential scrutiny. Not even the nation's bedrooms. Off-duty, on-duty, at work, at a friend's, anywhere. If your conduct significantly damages your employer's brand, it is cause for your discharge without compensation. This is generally more true for CEOs or anchors than of anonymous administrative clerks. But they too are not immune. When Philip Kelly, a materials manager at Linamar, was charged (but not convicted) of possession of child pornography in his home, Linamar decided that that presented a risk to its reputation and promptly fired him for cause. He sued for wrongful dismissal, claiming that this had nothing to do with his employment. He lost, ending up not only without compensation but paying his employer's lawyer's fees, in addition to his own. The lesson: Canadian employees should assume, at all times, that their conduct anywhere might become fodder for their employer and conduct themselves accordingly. I have always advised not to post anything on social media, at whatever age, that you would not like seen by a future employer. The cautionary tale of Ghomeshi is that that this caution must extend beyond what you post, extending to everything that you do which can be related by others or surreptitiously recorded.
- Unionized employees have limited protection. Ghomeshi, like any Union employee, cannot sue in court for anything to do with his employment relationship. But he, like other union employees, may have no recourse in any forum. Unions can decide whether to take a case. In making that decision, a union will consider its funding, other members' interests (does it wish its lawyers cross-examining fellow union members), its position on the violence against women, the cost of proceeding relative to its other financial needs, its prospects of success and anything else the union considers relevant. If it drops his case, Ghomeshi's only recourse is to go to the Canadian Industrial Relations Board claiming that the Union acted arbitrarily, discriminatorily or in bad faith. Such an application has a miniscule prospect of success. with one study finding that less than 1% of such cases succeed. And if the Union refused to take the case and the Labour Board declines to force it to, Ghomeshi is without remedy and still can't sue in court.
- Act quickly or face lawsuits. Employers must act quickly when there is a complaint. One accuser has apparently stated that she complained to CBC management a couple of years ago only to be told that Ghomeshi won't change and that she should figure out herself how to create a less toxic environment. If that occurred, CBC has considerable legal liability. Such a response violates the Canadian Human Rights Act, which requires employers to act with alacrity in investigating human rights complaints. It also opens the door to negligence actions against the CBC for condoning this behaviour by both that complainant and all victims from that date forward who will properly claim that, if the CBC had acted, they would not have been attacked or harassed. Negligence claims can result in vastly greater awards than wrongful dismissal ones. The CBC's lack of substantive response to date may well be motivated by fear of such complaints.
- Employers should consider code of conduct clauses, particularly for employees whose conduct could impact on their brand, such as C suite executives and talent. Such clauses prohibit conduct which could bring the employer into disrepute. It is said that Ghomeshi had signed just such a clause. That would make the case against him even more impregnable.
- Don't assume that, because a female complainant has not gone to the police, her claim is any less valid. Contrary to what several commentators have alleged, most victims of assault will not go to the police for a myriad of reasons. Included is the fear of being cross-examined about their personal and sexual history, having private details made public, being accused of consenting to the activity in question and embarrassment at going as far as they did.
- It is much easier for women to come forward now that Ghomeshi is being publicly pilloried. It was more difficult when he was the CBC's top star. Going to the police or even filing a harassment complaint then could have been the end of their careers.
- Employers should conduct social media reviews before hiring. They should ask during the interview process whether employees had ever conducted themselves in a manner which could create embarrassing for the employer. If the employee is not forthcoming, that lie during the application process will be cause for discharge even if discovered years later.
- Criminal court and sexual harassment claims are different beasts. Doctrines like the presumption of innocence, proof beyond a reasonable doubt and procedural protection are endemic in criminal law. They do not apply in the same way, if at all, in the employment arena. The Human Rights Tribunal, court, or arbitration panel will decide whether it is more likely than not that the perpetrator committed the misconduct. A reasonable doubt will not suffice. There are more procedural protections for the accused in a criminal context. It is common for accusers to be unidentified, to be known as "Jane Doe" or "X" in a criminal case. That is much more rare in civil ones. Consent is not the major issue in employment law. Rather, it is whether the conduct is embarrassing to the employer and damages it's "brand." In short, judging this case through a criminal law lens is misguided and misleading.
I predict that, just as the accusations made by Anita Hill against Clarence Thomas ushered in a sensitivity to sexual harassment many years ago, the Ghomeshi saga will create a sea change in Canadian's views toward abuse of power in the workplace and the responsibilities of everyone involved.
Note: This a reprint of an article by Howard Levitt of Levitt & Grosman LLP.