It's simply not practical to expect employers to properly handle workplace harassment disputes
A federal report and proposed legislation put the onus on Canadian employers to tackle complaints
This month, the federal government issued a double whammy in the ongoing effort to curb harassment in the workplace.
The first came in early November, with the release of a federal report titled "Harassment and Sexual Violence: What We Heard." Based on consultations with Canadians, the report confirmed the staggering prevalence of sexual harassment and violence in the workplace.
A few days later, the government unveiled Bill C-65, which would bring about a host of changes to the ways that harassment, violence and bullying are handled in federal workplaces. Among the proposed changes are requirements that policies be posted publicly, that employers conduct an investigation when faced with misconduct allegations (and bring in a third-party investigator when necessary) and offer support to those who are victimized in the workplace.
First stop for complaints
The report and the bill seem to go somewhat hand-in-hand. Both assign the employer as first stop in dealing with allegations of workplace harassment. And for what it's worth, many Canadians — at least, those surveyed in consultation with the report — agree: employers as an institution should carry the burden of protecting their employees.
But in many cases, that approach simply is not practical — not to mention fair or impartial. How can an employer who has been appointed to a dispute resolution board ever act objectively in assessing employee complaints?
What's more, I simply cannot fathom a scenario where an appointed employee (even when trained), could truly provide an unbiased assessment of employer misconduct.
- Liberals seek to tighten workplace harassment rules for businesses, Parliament
- Government consultation hears women in workplace under-report harassment for fear of retaliation
Consider a few real-life examples:
A client recently spoke to me about the sexual harassment she faced (unwanted sexual advances, lewd comments, etc.) in the workplace from the company CEO. The human resources department was headed by the CEO's niece, and my client suffered in silence for almost a decade.
Another client, following her parents' divorce, was subjected to verbal and physical abuse in the workplace at the hands of her father, the owner of the company. In that case, it was her own husband (who also worked for the same company), responsible for the HR functions, who told her a "formal complaint" would result in both of them being terminated.
Finally, just the other day a client spoke about being groped under her shirt by a client at a company outing. While the company has no ability to impose sanctions on any third-party (outside of severing the relationship with the client), when this woman complained, she found that her work hours and pay were soon reduced. She was also repeatedly asked if she was "100 per cent sure" it happened.
Fear of retaliation
The workplace is rarely as neat and uncomplicated as these sorts of bills and reports tend to imagine. There are often concerns about confidentiality, personal relationships and reputations. Indeed, most of those surveyed for the report identified employer retaliation and not being taken seriously as the most common barriers to taking complaints to employers.
And a fair proportion (30 per cent, according to the report) of harassment in the workplace is sexual, and almost all the victims are women in subordinate positions. Often, these women report to the senior-level men who harass them.
In my view, making the determination as to whether an employer has breached its obligations to address employee harassment is best left to a truly objective third-party.
It is indisputable that the report and Bill C-65 are being used as a rebuke, of sorts, to deal with a systemic crisis. Clearly, the government (along with many others) is tired of the empty platitudes around how employers are vowing to change attitudes around harassment in the workplace. They want to see employers actually make changes. But the workplace is really the wrong venue in which to settle these disputes.
Employees would be far better served with the tightening of human rights and occupational health and safety legislation, and by creating a more efficient route to have complaints heard by regulatory bodies (meaning getting to hearings and mediations without having to wait more than a year in most cases). Encouraging internal resolutions and employer intervention will only further compound the problems many employees face at work.
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