Web of Law and Policy Discourages Reporting of Sexual Harassment

A colleague of mine at First Reference, Adam Gorley, wrote an article about the Standing Committee on the Status of Women’s study on sexual harassment in Federal workplaces. I thought I would share this very interesting article here on Slaw.

This article is written by Adam Gorley, March 2014, Editor at First Reference Inc.

A new report on sexual harassment in the federal public service and federally regulated industries finds that a “plethora” of unaligned laws, regulations and policies have discouraged victims from reporting and leave lots of room for harassers to avoid punishment. The Commons Standing Committee on the Status of Women relied mainly on old data, and no data at all in cases where departments did not participate in surveys. But many witnesses supported their call for clear new training, investigating, recording and reporting requirements.

Currently, the Canada Labour Code “defines sexual harassment, establishes the rights of employees and obligations of employers, and sets out the required contents of a policy against sexual harassment.” And the Canadian Human Rights Act “prohibits sexual harassment in the workplace and prescribes a mechanism for hearing, investigating, and providing remedies for complaints.” These laws deal with sexual harassment but numerous others address employment and labour relations in the federal jurisdiction. Moreover, sexual harassment may fall under the Criminal Code. In addition, the various laws, regulations and policies contain dramatically different procedures for making and resolving complaints.

The committee made 14 fairly broad recommendations to better address sexual harassment and build respectful workplaces in the federal jurisdiction:

  • Implement a policy at the federal level to clearly define sexual harassment; include it in any Treasury Board policies on sexual harassment for the federal workplace.
  • Include specific questions on sexual harassment in the next Public Service Employee Survey to understand the extent of sexual harassment and underreporting of sexual harassment in the workplace and assess the effectiveness of existing processes in place.
  • Departments and deputy ministers should designate harassment advisors and promote flexible options to contact the advisor, such as a confidential 1-800 number.
  • Federally regulated employers should extend the length of time from the current two years for which disciplinary notes related to sexual harassment in the federal workplace may be retained in an employee’s file.
  • Status of Women Canada should work with the Treasury Board to establish a common timeline for processing complaints of sexual harassment based on best practices, so complainants’ claims can be promptly and efficiently resolved.
  • Grievances by federal employees alleging a breach of the Canadian Human Rights Act should be addressed by adjudication, so a manager would not make the first ruling on a complaint.
  • Wherever possible, federally regulated employers should consider alternate dispute resolution methods such as dialogue, facilitation and mediation as the first step to resolving sexual harassment complaints.
  • Status of Women Canada and the Treasury Board should take the lead in promoting the use of alternative dispute resolution mechanisms to deal with sexual harassment complaints.
  • Employers should apply meaningful sanctions to demonstrate to offenders that sexual harassment will not be tolerated in the federal workplace
  • Status of Women Canada should work with Parliament to heighten awareness of sexual harassment in the workplace.
  • Status of Women Canada should work with the Department of Foreign Affairs and International Trade to address the gaps that exist for foreign service officers who face sexual harassment in the workplace.
  • Expand training of employees in federally regulated workplaces to include developing a respectful workplace and a collegial environment; using different harassment prevention strategies, such as bystander intervention; understanding the workplace policy on harassment and knowing what behaviours are not acceptable; knowing how to raise complaints of sexual harassment and the subsequent reporting process; the responsibilities of management and the employer; and recognizing inequalities in the workplace, particularly related to gender.
  • Train all management and supervisors in maintaining a respectful workplace, including how to address sexual harassment in the workplace.
  • Management in federally regulated workplaces should work with unionized and non-unionized employees in dealing with incidents of sexual harassment and preventing sexual harassment from taking place.

These recommendations apply to the federal jurisdiction, but some contain good general advice. The committee also outlined three factors that are key to reducing sexual harassment: leadership, training and workplace culture.

Organizational leaders should “explicitly state that sexual harassment will not be tolerated; promote a workplace culture of respect; actively combat the problem by creating practices to adequately deal with such cases; and swiftly and appropriately react to reports.”

Management must be trained in “preventing inappropriate behaviours from escalating”; “identifying risks, diagnosing problems and fostering dialogue”; “handling of complaints in an appropriate and responsible manner”; as well as “ethics and accountability.”

Organizations may need to undergo a “cultural shift” to move beyond their current work environment. This might mean acknowledging sexual harassment in the workplace, taking a strong stand against it and consistently applying a clear enforcement plan. Or it might mean challenging the “social norms that govern workplace behaviours,” shifting from a culture that works to dismiss sexual harassment and its effects.

Bystanders can also play an important part in preventing and reporting sexual harassment. Employees may be afraid to intervene or indifferent, but employers can try to empower them through training and by communicating “the collective responsibility for a healthy workplace, strategies to address harassment when it happens, and ways to support complainants of harassment.”

Regardless of the weak survey evidence, there is no doubt that sexual harassment is occurring in federally regulated workplaces. Hopefully, the government will listen and implement the committee’s recommendations. It is crucial to determine the extent of sexual harassment in the federal jurisdiction in order to respond appropriately. Nonetheless, these recommendations should surely make for healthier workplace relationships, better work environments and less sexual harassment.

Read “A Study On Sexual Harassment In the Federal Workplace” by the Standing Committee on the Status of Women here.

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