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For Calgary-based human-resources lawyer Will Cascadden
of Spectrum HR Law, avoiding
litigation in such cases comes
down to firms practising what
“They tend not to listen to the
advice they give clients,” he says.
Cascadden told The Lawyers
Weekly the situation revolves
around due diligence in ensuring
anti-discrimination policies are
promoted within firms and that
employees are educated about
them and acknowledge them.
“You’re not going to attract
good people and you’re going to
lose good people,” he says. “A lot
of it is common sense.”
However, Cascadden says,
such situations are likely more
common than lawyers might like
“A lot is not reported,” he says.
“[Reporting an issue can be] a
very career-limiting move.”
Employment lawyer Stuart
Rudner of Miller Thomson
agrees, saying law firms are no
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different than any other employers when it comes to facing liability if a permissive work environment is allowed to exist.
He told The Lawyers Weekly if
a case of harassment is reported to
a supervisor, that person must act.
“This doesn’t only apply to
sexual harassment. It applies to
any other policy,” Rudner says.
“You have to make sure there is a
policy and consequences if there
is a breach and those who breach
must be penalized.”
He said to do otherwise is to
allow a court to rule the employer
had allowed a permissive work
environment to exist.
“That’s where employers open
themselves to significant liability,” Rudner says.
And, he says, there shouldn’t
be weight put on someone in a
place of employment because of
their junior or senior level when
it comes to conduct.
“It shouldn’t be like that but if
it is, there is a problem,” Rudner
says. “If there is sexual harassment, there is usually a power
imbalance. Most commonly, it is
someone in a position of power.”
Rudner said the way around
such cases should they ever come
to court is to have ensured in the
first place that everything reasonable was done to prevent it.
“If you can’t show that, there is
a possibility of significant liability.
“If the type of conduct that is
alleged (in Laskis) was allowed to
continue without any repercus-
sions, then the employer will
have a big risk.”
The case comes as law soci-
eties across Canada work to find
and retain more women in the
The Law Society of Upper
Canada in May 2008 produced a
report called Retention of Women
in Private Practice Working
Group. It notes women have been
entering the profession and private practice in record numbers
for at least two decades. However, it notes, women have been
leaving private practice in droves
largely because the legal profession has not effectively adapted
to this reality.
As a result, the report says, the
profession is losing some of its
“best and brightest,” at an estimated at $315,000 for a four-year associate.
“Law firms have a legal responsibility to provide environments
that allow women to advance without barriers based on gender. It is
in the public interest for the providers of private legal services to
reflect the make up of the society in
which we live,” the report says.
Given the self-regulating nature
of the profession, the report says, it
is in the public interest to ensure
gender equality. n
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