#MeToo and Wrongful Dismissal - LawNow Magazine

#MeToo and Wrongful Dismissal

Employment Law ColumnIntroduction

It is said that everyone has their own #MeToo story.  Indeed that is exactly the message #MeToo seeks to communicate.  I start this column with a story that comes to my mind in this context.  This then leads to the main point of this piece: #MeToo makes for captivating human interest stories and an empowering political movement, but it is irreconcilable with civil justice under our modern employment law system.

More than twenty seven years ago, the committee that selected and hired me for my current job included a senior female tenured professor in my academic discipline.  Shortly after I started the job, she shared that she was single and available.  As strange as it may seem, this did not strike me as inappropriate.  I considered her a casual friend who opened up a bit about her personal life.

However, she continued to remind me of her influence in hiring me and implied she could influence the length of my new employment.  She pressured me to use a draft of her new book in my teaching.  She exerted other subtle persuasions on my work although she had no supervisory role.

Another unsettling element of these spectacular ‘fire first, ask questions later’ terminations is their hasty and public nature.  But when my wife gave birth to twins a year later, my colleague’s spontaneous comments on my “breeder” qualities were utterly shocking.  I withdrew from interacting with her, even though she could sabotage my fledgling career.  I am not aware that she did seriously undermine me.  My career setbacks were caused by me alone.

What if I raised my hand today and called out her name?

Warning to Employers

What plays sensationally well to the public in the news, often meets with a very different fate years later in the courtroom.  It is tempting to submit to the mob rule of #MeToo, of a tweet, a news story, even a rumour to immediately terminate the employment of an employee or manager for an indiscretion alleged by one or more accusers (with unproven motives) to have occurred many years and decades ago.

While the statutory limitation periods have been lifted for civil claims involving “any misconduct of a sexual nature” as discussed in a recent column here, wrongful dismissal claims can be brought up to two years later by terminated employees.  Terminated workers simply do not have a fair or reasonable opportunity to refute unsubstantiated allegations of sexual harassment from decades ago in the face of the #MeToo movement, but they have the strong advantage in any ensuing wrongful termination lawsuit.

Sexual harassment must also be distinguished from sexual assault, which is criminal and much more serious.

Most of the stale allegations which drive these firings are of the ‘she says, he denies’ category.  This is the weakest possible basis upon which an employer can defend a wrongful dismissal lawsuit because the defence will ride solely on the integrity, recollection and motives of the accuser(s).  Since the dismissal was swift, there will be no objective investigation and evidence available.

Even if some of the historic allegations are accepted as true, they will not establish sufficient cause for summary dismissal.  Some complaints involve behaviours outside of the worker’s scope of employment, unrelated to the job.  Sexual harassment must also be distinguished from sexual assault, which is criminal and much more serious.

Managers and co-workers who are summarily dismissed in the current #MeToo hysteria rarely benefit from objective evaluation of the accusations. Rather their employers choose to make examples of them in the most public manner possible.
If the employee’s work record was otherwise beyond reproach, and the harassing behaviour occurred many years ago, summary dismissal will be virtually impossible for the employer to justify.  Even where the misconduct is in the present, progressive discipline – such as a warning or suspension – must be considered and tried before firing.  Forcing one to resign is legally synonymous with terminating that employee.

Another unsettling element of these spectacular ‘fire first, ask questions later’ terminations is their hasty and public nature.  This is precisely what the employer intends to do – to stem any public backlash and loss of brand value.  Nevertheless, this form of crisis management often translates into high defence and liability costs down the road.  Canadian employment law does not permit employers to throw their employees under the bus.  If they do, damages can be high.

Some of the top American executives who have fallen victim to this mob rule stand to lose hundreds of millions of dollars and, with their reputations in tatters, they may never be able to rehabilitate their businesses and careers.  On the strength of an accuser’s mere allegations years and decades after the asserted misconduct, it is not right for employers to immediately sacrifice workers to save the employer’s reputation.  This will not end well for many employers facing wrongful dismissal lawsuits in the years ahead.

Conclusion

Even back in the day when my senior colleague made her outrageous “breeder” comments, there was awareness of the harm of sexual harassment in the workplace.  My employer had a sexual harassment policy and an officer enforcing it who, naturally, was another woman.  It was assumed that only men harass, that only women are victims and that only a woman can know what sexual harassment is.  The role of our workplace sexual harassment officer was largely advisory and preventative but even in 1992 one could be punished to the point of losing one’s job for sexual harassment.

But when my wife gave birth to twins a year later, my colleague’s spontaneous comments on my “breeder” qualities were utterly shocking.  Not long after the comments, I attended a staff presentation by the sexual harassment advisor.  I mentioned the objectionable comments by the unidentified female colleague in authority.  The advisor laughed off the comments, and my question.  She assured me the colleague “had only been joking”.  Today the sexual harassment advisor would be seen as an enabler.  The new mantra on campus is “We Believe You”.

However, I had the opportunity to raise any concern with the co-worker at the time, and to escalate it to the employer if necessary.  I decided not to do that then.  While she continues to be my colleague today, I am morally and legally bound not to do that a generation later.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 


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