Concerned about risk? #MeToo: A discussion on civil liability, sports, and the #MeToo movement

The ever-changing landscapes of political, social and technological advances mean that risk factors for organizations are constantly evolving.

Enter: the #MeToo movement.

The #MeToo movement has impacted some of the most powerful men in entertainment, politics and the judiciary. The movement began on October 5, 2017, when the New York Times published an article in which several women, including actress Ashley Judd, accused Harvey Weinstein of sexual harassment and misconduct spanning three decades.^[1] The hashtag, created more than a decade earlier by civil rights activist Tarana Burke, thereafter became a viral campaign.^[2] The movement created increased awareness of sexual harassment and misconduct and a culture of zero impunity for men in powerful positions who abused women.^[3]

The movement swept across Canada bringing to light accusations of sexually inappropriate behaviour against men of notoriety, including members of parliament, prominent members of Toronto's theater community, and well-known celebrities in Quebec.^[4]

In recent years, we have observed an evolution of the social climate to a point where victims have openly denounced sexual misconduct, and perpetrators are being held accountable. This social reality requires organizations to prepare plans, policies and procedures not only to prevent these events from occurring but also to manage what happens, should they occur.

Consider the actions of Champions Gymnastics in Edmonton in the wake of founder and former coach Michel Arseneault being accused by three former athletes of sexual abuse in the 80s and early 90s.^[5] The organization took immediate and definitive action. It posted a notice on their website stating, "[m]oving forward, Mr. Arsenault will not be involved in any activities at Champions Gymnastics and will not be allowed on our premises."^[6]

Contrast that with the USA Gymnastics' treatment of the fifty plus complaints of sexual abuse which they kept on file but did not action. Dr. Larry Nassar's abuses came to light in 2016 when The Indianapolis Star reported that USA Gymnastics kept files of complaints of sexual abuse involving more than 50 coaches.^[7] Two former gymnasts came forward thereafter and accused Dr. Nassar of abusing them as children.^[8] This opened the floodgate to the revelation that the physician had assaulted at least 40 women and girls.^[9] This was a surprise to the public, but perhaps not to the physician's former employers, Michigan State University and USA Gymnastics, who had received multiple complaints of sexual abuse by him and yet allowed him to continue working.[^10] On January 24, 2018, Dr. Nassar was sentenced to 40 to 175 years in prison by a court in Michigan, following a guilty plea on 10 counts of first-degree sexual misconduct.^[11] In the aftermath of the scandal, a number of lawsuits were commenced against Michigan State University, USA Gymnastics and other parties.^[12] On May 16, 2018, Michigan State reached a historic $500 million settlement with Dr. Nassar's victims.^[13] In a statement, John Manly, attorney for the victims, recognized that

[i]t is the sincere hope of all of the survivors that the legacy of this settlement will be far-reaching institutional reform that will end the threat of sexual assault in sports, schools and throughout our society.^[14]

In the wake of #MeToo and similar social media movements, sports organizations are particularly exposed. Beyond the reputational damage that an organization can suffer from, should one of its members be found to have engaged in sexual misconduct, there is a risk of legal liability for failing to create an environment that is safe for those participating.

Consider the example of an athlete getting injured in a gym because the equipment was not well maintained. Liability could rest on the recreational facility in negligence or pursuant to the Ontario Occupiers Liability Act ("OLA"), for failing to ensure that those entering onto the premises were safe. The analogous concept applies in the context of sexual misconduct. Courts have considered the possibility that occupiers may owe a duty of care to prevent sexual assault, if the perpetrator in question is known to the organization, and given free access to its premises.^[15] In addition, the OLA provides that an occupier's duty to reasonably prevent harm applies to activities carried on the premises.^[16] The OLA does not define the term 'activity'. Courts have indicated that sexual assault constitutes an 'activity' pursuant to the OLA.^[17] Moving beyond sexual assault to sexual harassment, bullying, discrimination, gender based violence-organizations need to consider their legal liability for failing to address these issues and failing to create a safe premises for those invited onto their premises to enjoy.

With the risk identified, organizations must decide what strategies should be implemented in order to mitigate the risk. We promote evaluating these strategies through the following model: (a) Before; (b) During; and (c) After.

Before

Before any form of harassment, assault or abuse occurs, an organization must have policies in place to reduce the likelihood of occurrence:

• Generating internal policies that address sexual misconduct and promote a culture of zero tolerance;
• Requiring criminal record checks for new employees and volunteers;
• Implementing a workplace harassment policy;
• Developing a mechanism to ensure that staff, volunteers and participants are compliant with the policies;
• Obtaining the appropriate insurance, which may include a General Liability policy and a Director's and Officer's Liability policy;
• Implementing a reporting structure for individuals to report incidents of misconduct with an anonymous author option;
• Providing education and training to ensure that the policies and procedures and reporting mechanisms are understood and implemented.

As a starting point, it may also be important to have an internal conversation regarding "what is harassment; what is sexual misconduct; etc." Educating the personnel regarding what is and is not acceptable has to occur before change can be facilitated. This conversation makes everyone (not only victims and potential victims, but male managers and people in positions of power) feel more at ease and more capable of confidently and safely moving forward in the environment.

The organization's culture may need to shift. The mindset of what is tolerated and what is acceptable may need to be evaluated. This can only happen with support from the executive and buy-in throughout the organization. These policies and considerations must address some of the barriers confronted by victims-fear of retaliation, mistrust of human resources, and mistrust of management or concerns regarding the effectiveness of the process.

During

Responding to any crisis, including allegations of sexual harassment, abuse or assault, requires immediate action. In order to be ready to react immediately, a comprehensive response plan must be implemented. There is no time during a crisis to plan how to address it-the plan must be in place beforehand.

Procedures that set out the steps to be taken once a complaint is made should be in place. For example, a Critical Incident Management Procedure should delineate who the crisis response team is, who the leader/decision maker is, whether investigations will be initiated (internal and/or external), whether internal and/or public statements need to be made, what the statements will be and who will be making them. In the context of preparing the procedure, the team must review the applicable insurance policies; determine whether there are preferred external vendors (legal counsel, communications specialists, investigators, etc.) and ensure that these vendors are pre-approved by the insurer such that when the crisis presents itself, there is no delay associated with selecting the vendors and/or obtaining insurer approval of them.

After

Once the crisis passes, the organization's reputation (both from the perspective of internal and external stakeholders) remains vulnerable. Therefore, it is important that the organization demonstrates the following: sensitivity to the issues raised; seriousness in dealing with the issues raised; and commitment to address shortcomings and doing better.

It is possible for organizations to recover from this type of crisis. In fact, an organization can actually rebrand themselves and take the opportunity and initiative to become leaders.

Addressing risk is about preparedness. For a more tailored and individualized assessment of your organization's risks and treatment mechanisms, please do not hesitate to contact us.

Jahmiah Ferdinand-Hodkin & Scarlett Trazo