Addressing Sexual Harassment and Misconduct in the Present Moment

Who this resource is for: BC Societies.

Who created it: This document contains notes transcribed from PLEO’s “Addressing Sexual Harassment and Misconduct in the Present Moment” webinar. © Pacific Legal Education and Outreach Society (PLEO), 2020

Presented by Julie Macfarlane and Clea Parfitt, moderated by Martha Rans

1. What is your advice for a workplace to create an internal process that people will actually want to use to report sexual harassment and misconduct?”

Organizations need to keep in mind what issues the process is trying to address, and how to create a process that people will be comfortable with. There are two key components:

a) Identifying what constitutes as misconduct in the workplace culture

  • This is a cultural question for each organization to decide.

  • Certain behaviours are normalized in some organizations that shouldn’t be, for example bullying or “minor acts” of sexual harassment and microaggressions.

  • You want to create a culture where people feel comfortable calling out bad behaviour.

b) Creating a space where the complainant feels safe and is not facing public scrutiny

  • There is value in having a confidential listener who is a third party and is independent of the organization, in order for the complainant to have someone to talk to while deciding what to do. There is no pressure to immediately make a formal complaint.

  • Complainants should be given confidentiality that their circumstances will not be available to anyone other than those taking the report and those seeing the final report.

  • They should have access to the notes or recordings that are made in order to maintain control over their own narrative.

  • The complainant should be able to bring someone along for support.

Just because there is a process in place does not mean people will want to use it. To make the process attractive for employees, there must be trust built into the process as information readily available for those who want to know more about what going through the process involves.

2. How can organizations balance liability considerations with helping complainants, while maintaining transparency?

Having a confidential listener position allows potential complainants to obtain external advice. This allows the complainant to have access to a range of options other than the internal process, for example a human rights complaint. These options should be presented to the complainant before moving ahead to an internal complaint process.

There is a need to address systemic issues in organizations. By taking a realistic view towards potential problems in the structure of the organization’s culture can reduce the possibility of future liability. Moving towards a narrative of health and safety and human rights in the workplace takes the focus away from an adversarial blame game, and onto creating a healthy workplace. 

Confidentiality is also an important issue that should be worked out beforehand. Questions that can be asked include:

  • Does the board have to know? Does the whole board have to know?

  • Does the ED have to know?

  • Does the complaint reside in HR?

Organizations need to be realistic about confidentiality issues, as complainants must have control over their own story, so they need to be able to share it with trusted parties.


3. What are some important considerations regarding signing a Non-Disclosure Agreement (NDA) during the settlement process?


Often, it is expected that a non-disclosure agreement will be offered to the respondent during a settlement. This document encourages the respondent to take the settlement and not go to the media.

This practice is problematic because the next organization that hires them has no idea why they left their previous position. This is referred to as “passing the trash” in some literature. 

Although the practice is framed as protecting claimants, the claimants are often not present during these settlement agreements. They are also asked to sign NDAs, which presents a liability issue if they should wish to speak up about their own story later. Therefore, these documents should only be signed after careful consideration of future liability. 

NDAs should not be the norm, as they are immoral. They should not exist to create a risk for speaking up and warning others. Ideally, they will eventually be unenforceable and illegal for the public policy reason of not passing known abusers to the public.


4. How do you navigate the transition time between someone disclosing and making a formal complaint? If the complaint is against another employee, how do you protect the rest of your staff?

For the complainant, it is necessary to keep in mind that if you are disclosing to someone who represents the employer, then it is difficult to avoid making some kind of action. Once the employer gets disclosure there arises a duty to act.

Therefore, the complainant must have the choice to go forward or not. The confidential listener position puts in a buffer during this process and allows the complainant to unpack, especially where issues are multifaceted, and process in the way they need to.

Employee Assistance Programs can also help by creating counseling programs for emotional issues faced by employees. This existing model creates an example for how the confidential listener position may be structured. 

5. What training is needed for confidential listener and how should they interact with management?

The confidential listener must be a knowledgeable, independent party

  • They should be trained in counselling and conflict resolution

  • Since complaints often involve sexual harassment, the confidential listener must be able to understand the unique power dynamics at the heart of this issue

  • Not always necessary, but legal training can be useful and important. They should at least know how to navigate the different resolution options, such as criminal, civil, internal complaint, and human rights resolutions. They need to be able to answer direct questions

  • There exist community women’s support services that act as confidential listeners. 


As a related issue, investigators should have a professional code of conduct for best practices and know what the investigative process is like. It is imperative to know the terms of reference and clearly express them to the complainant. This is especially important when considering intersectional issues for certain racialized, disabled and gender non-conforming populations, and how they are affected by the cultural in the workplace. 

Finally, we urge anyone who needs support to reach out to Community Legal Assistance Society (CLAS) for information about human rights complaints. CLAS also operates SHARP, a free clinic that offers five hours of legal advice for victims of sexual harassment. 

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