Nova Scotia

N.S. needs better protection for victims of workplace sexual harassment, says lawyer

A Halifax lawyer says it's time Nova Scotia's workplace safety law explicitly addresses sexual harassment so that complaints can be dealt with sooner by an independent investigator who's trained to deal with them.

Labour minister says changes to Occupational Health and Safety Act should be coming this fall

Gail Gatchalian, a partner with Pink Larkin in Halifax, says employees who face sexual harassment at work should have their complaints handled quickly by an independent investigator. (Robert Short/CBC)

A Halifax lawyer says it's time Nova Scotia's workplace safety legislation explicitly encompasses sexual harassment so complaints can be investigated sooner by someone who's trained to deal with them.

The province's Occupational Health and Safety Act covers physical violence at work, but not harassment and sexual harassment. That means if someone is sexually harassed by a co-worker or boss, there's no mechanism for the Labour Department to intervene and investigate.

Several provinces have already updated their legislation to include harassment, and others are in the process of doing so, including Nova Scotia.

"Hopefully, complainants and victims can have their complaints of sexual harassment addressed promptly ... before their employment situation is destroyed, which is often the case now," said Gail Gatchalian, a labour, employment and human rights lawyer at Pink Larkin.

She said including sexual harassment in Nova Scotia's workplace safety regulations would hold employers to account, and give victims another avenue to seek justice.

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While employees can file complaints with the Nova Scotia Human Rights Commission, that process can take a long time, Gatchalian said. It's also complaint driven, unlike workplace safety regulations, which allow officers to visit an employer and make sure they're complying with the act.

Labour and Advanced Education Minister Labi Kousoulis said the province is working on changing the workplace health and safety act, and will likely table updated legislation this fall.

But he said at this point, consultations with community members have focused more on bullying, rather than sexual harassment.

"It's something that we would look at, but ... I don't want to water down sexual violence or sexual harassment because that is a criminal offence," he said.

In a follow-up email to CBC News, a spokesperson said the department is still trying to "determine how we may best address harassment under the OHS Act, including the scope of actions that could be part of harassment in the workplace, such as sexual harassment."

Labi Kousoulis, minister of Labour and Advanced Education, says he's been holding consultations about amending the workplace safety act for the last year. (Craig Paisley/CBC)

Kousoulis said Nova Scotia has waited to introduce updated legislation while it learns from other provinces about what works, and what doesn't.

"You could bring it in very quickly, and it would not be effective and that would be a simple process, and although people on day 1 would feel good, by the time they start testing the act, they're not getting the results they want," he said.

We shouldn't be forcing women to address that through the criminal justice system.- Gail Gatchalian, partner at Pink Larkin

While sexual assault is a criminal offence, sexual harassment is more complicated because it can range from inappropriate comments and sexist jokes to groping and other unwanted touching.

"The fact that sexual harassment in the workplace might be criminal is irrelevant to whether or not it's a workplace issue," Gatchalian said.

There are many reasons why a victim may not want to go through the court system, she added.

"We shouldn't be forcing women to address that through the criminal justice system because there's a lot of problems involved in pursuing a criminal charge," she said.

Why has it taken so long?

Gatchalian wants Nova Scotia to follow the lead of provinces like Ontario, where complaints of workplace sexual harassment must be investigated by a trained, independent third party that the employer pays for.

She also pointed to recently introduced federal legislation, Bill C-65, that covers sexual harassment in federally regulated workplaces, and also gives employees access to an independent investigator.

Updating Nova Scotia's workplace safety legislation is supported by Equity Watch, a human rights advocacy organization, and the provincial NDP. The NDP tabled a private member's bill last October calling for the inclusion of psychological harassment and bullying in the province's act.

The amendment doesn't specifically mention sexual harassment.

Susan Leblanc, NDP MLA for Dartmouth North, is questioning why it's taken the province this long to update the act to include harassment. (CBC)

But Susan Leblanc, MLA for Dartmouth-North, said sexual harassment would be covered under psychological harassment.

"This is something that would bring Nova Scotia in line with the rest of the country," she said. "It's not groundbreaking legislation, although it means a great deal to the people it affects. It's a simple change and they could have done it last fall, so why are Nova Scotians waiting?"

While the conviction of American movie mogul Harvey Weinstein this week on two counts of rape and sexual assault shows that huge strides have been made toward justice for survivors of sexualized violence, Gatchalian said it's not enough.

She said workplaces need to do a better job of preventing and responding to sexual harassment, including training all employees to step in when they see harassment happening.

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With files from CBC's Information Morning