Thousands of Canadian executives find themselves lost navigating these often subtle and obscure boundaries

In this “woke” new world, there are thousands of Canadian executives and high-level managers who find themselves lost navigating these often subtle and obscure boundaries. Nowhere is this more apparent than in male-dominated industries, such as oil and gas, mining, construction and many others, in which multiple micro-cultures exist across the business.

In the oil and gas industry, for example, it is not uncommon for an employee to spend years, even decades, working their way up in a male-dominated camp in northern Alberta, immersed in what might be described as a “locker room” culture, with a uniquely crass, blunt and “macho” style of communication. An environment where fitting in and building connections demands a certain understanding and cultural assimilation. This is true for the derrick hand all the way up to the rig manager.

Some of these field employees will eventually make the leap to senior management — and even the C-suite — thanks in part to their successful integration into the field culture. But the same workplace norms, boundaries and expectations no longer apply in a more formal, progressive office environment. While the employees know this reality, many struggle to find their way.

The employee once praised for his boisterous, “tell-it-like-it-is” personality suddenly finds himself the subject of discrimination or even harassment complaints, stemming from comments made — perhaps years back — in a WhatsApp chat group. His “life of the party” reputation at company social events is now met with questions regarding his professionalism, or worse, rumours of a substance abuse problem.

These difficult transitions exist for management in every sector, and organizations need to wake up and be proactive in helping these leaders through them — before it’s too late.

Like it or not, the consequences for companies in this new world are both real and potentially catastrophic, ranging from constructive dismissal lawsuits and human rights complaints to reputational damage and loss of public trust, funding or a drop in share price. Every organization must invest in ongoing risk-mitigation strategies, including educating and training on workplace boundaries, policies and expectations — all of which start at the leadership level. While robust workplace policies and training are pivotal in maintaining a safe and healthy workplace, they are not a substitute for outside legal advice and direction when senior management or executives are involved.

Here, we offer what employers need to know about this issue, and how they can address issues of equity without infringing on rights or exposing themselves to litigation.

Risk 1: Discrimination allegations in reverse

One of the most significant legal risks executives face is a potential reverse discrimination claim. As companies ramp up diversity initiatives, some employees may feel sidelined or discriminated against due to these efforts. Executives who oversee hiring, promotions, or restructuring processes might face lawsuits alleging that these decisions were based on race, gender, or other protected characteristics under the guise of promoting diversity.

Canadian law protects employees from discrimination based on race, gender, ethnicity and other grounds under the Canadian Human Rights Act and provincial human rights codes. Executives must ensure that diversity efforts are balanced and do not unintentionally marginalize certain groups, particularly majority groups who may feel excluded by diversity-based hiring quotas or promotion targets.

Risk 2: Mismanagement of social justice initiatives

Many organizations have rolled out bold corporate social responsibility programs aimed at addressing societal issues, including racial injustice, climate change and gender equality. While these initiatives can enhance a company’s public image, executives must manage them carefully to avoid liability.

For instance, employees who disagree with a company’s stance on certain social issues may feel coerced into supporting initiatives that conflict with their personal beliefs. This could lead to claims of wrongful dismissal, constructive dismissal, or breaches of employment contracts, written or verbal, if workers feel pressured to conform to a corporate ethos they disagree with. Executives need to strike a balance between supporting social causes and respecting the diverse views of their workforce.

Risk 3: Cancel culture and reputational damage

In the era of social media, executives are increasingly subject to public scrutiny for both their professional actions and personal views. While progressive workplaces encourage open dialogue on issues such as race, gender and politics, executives risk becoming the target of “cancel culture” for comments or actions that are deemed inappropriate or insensitive.

A single misstep or public relations incident can lead to swift backlash, not only from the public but from employees. Executives may face internal investigations or demands for resignation, even if their actions fall within the realm of free speech or personal conduct. Legal challenges can arise if an executive is forced out of their position under questionable grounds, leading to potential wrongful dismissal claims or disputes over severance entitlements.

Risk 4: Compliance with employment standards

As progressive workplaces push boundaries on traditional employment models, such as allowing flexible work hours, remote work and unlimited vacation policies, executives are tasked with ensuring these practices comply with Canadian employment standards.

Failure to adhere to provincial employment laws can result in significant penalties. Executives need to be cautious about whether their company’s innovative policies, like gig work models or flexible schedules, meet the legal requirements for overtime pay, minimum wage, and workplace safety. Inadvertent violations can expose businesses to costly lawsuits, as seen in the rise of class action suits against companies for misclassifying employees as independent contractors. And most companies do not follow employment standards assiduously and have practises which are unwittingly non-compliant. Courts are increasingly punishing employers for what may appear to be innocuous errors.

Risk 5: Handling complaints of harassment and discrimination

Woke workplaces often come with heightened sensitivity toward harassment and discrimination claims. Executives are responsible for ensuring that proper procedures are in place to handle such complaints quickly and effectively. If claims are not addressed appropriately, companies may face significant liability under federal and provincial harassment laws, including the Occupational Health and Safety Act in Ontario and its equivalents in other provinces.

Executives must walk a fine line between fostering a zero-tolerance culture and ensuring that due process is afforded to those accused of misconduct. In some cases, overly aggressive enforcement of harassment policies without proper investigation or objective analysis can lead to legal battles over wrongful termination.

Mitigating the risks

For executives, the key to navigating these legal risks is a proactive, well-informed approach to leadership. Some strategies to mitigate these risks include:

1. Comprehensive Training: Executives should be well-versed in human rights, employment law and diversity management through regular legal and strategic training. This will ensure they are equipped to handle the complexities of woke workplace dynamics.
2. Balanced Policies: While promoting diversity and inclusion, it’s crucial to ensure that policies are fair to all employees and do not give rise to reverse discrimination claims. Legal counsel should review policies regularly to maintain compliance with human rights laws.
3. Cultural Sensitivity: Encourage open dialogue and transparency but set clear guidelines about respectful conduct. Executives must model inclusive behaviour while protecting the rights of all employees to express differing viewpoints.

Canada’s increasingly progressive workplaces present new opportunities for fostering inclusive environments, but they also expose executives to heightened legal risks. Managing these complexities requires a delicate balance of promoting diversity, safeguarding employees’ rights and ensuring compliance with employment laws. By remaining vigilant and seeking sound legal advice, executives can mitigate these risks while leading their organizations into a more inclusive future.