Status of Women Committee on Oct. 23rd, 2012

[Christopher Rootham]

Certainly, in respect of internal mechanisms to deal with harassment complaints, the federal public service is significantly better than the broader public sector or the private sector. One of the main differences is that in the federal public sector there are a number of internal mechanisms. You can file a grievance, and there are other administrative methods of recourse.

In the private sector, you're stuck with either a human rights complaint, in which you can only hope for the best, or in some cases a civil action if the sexual harassment has other components to it, aside from just being sexual harassment.

In a federally regulated workplace, you cannot sue for sexual harassment alone, but you could sue for constructive dismissal on the basis of having been sexually harassed.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

I am hearing you say that both the provincial and the federal governments are taking active steps toward preventing this and having more of a study, so that people feel they can look into anything they need to complain about and bring forth their complaints.

We've already heard from Treasury Board, and I'm glad to hear you say that this new policy is a step in the right direction. But an informal approach to addressing complaints is often taken. Can this be effective?

[Steven Gaon]

In my experience as a mediator, informal resolution is often very effective. It depends on the nature of the complaints. I know that on the surface it sounds as though all sexual harassment complaints are the same. That's not the case. There are degrees and there are different cases.

I would suggest that informal resolution, including workplace facilitation and one-on-one mediation, can be very effective. It can usually resolve the problem if it's handled properly.

[Christopher Rootham]

That's all true. I want to say that there are benefits to resolution outside of the informal resolution. Informal resolution has both the benefit and the detriment of being confidential. There's no publicity around promoting people coming forward with sexual harassment complaints if it's done informally.

There's no broader sense of deterrence and adverse publicity if it's dealt with through an informal mechanism, and so there are a large number of benefits to resolving sexual harassment complaints informally and as soon as possible. But I would not like to see a system where there is no access to a more formal complaints mechanism. There are real benefits to having a decision that's made public.

[Steven Gaon]

I can give you a quick example of a case that I'm working on right now, actually, where I offered up mediation to the parties. It's not a sexual harassment case; it's simply allegations of harassment. One of the responses you often get from the respondent is that they want to be vindicated. Sometimes people need that closure. The same applies to complainants. Sometimes they need a definitive decision at the end of the day. That varies from case to case.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

How do you see the private sector becoming more educated and more ready to take part, file complaints, and be more upfront than they are now? Do you see any way they can be trained and made to feel comfortable with this?

[Steven Gaon]

It's difficult to see how that can happen until we as a society become better educated. For example, we can see organizations and companies taking more of a progressive stand in trying to prevent harassment in the workplace. I've seen that. However, we cannot compel the private sector to put on, for example, mandatory sessions to train them as to what does or does not constitute harassment.

Often, it's a financial issue. They don't want to put the resources into it. I'm glad to see that the federal government is putting the resources into trying to prevent it in the workplace. Hopefully, there will be some trickle down to the private sector. I expect there will be.

[Christopher Rootham]

To follow up on that, we can mandate—

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

No, I know we can't mandate, but I'm just wondering—

[Christopher Rootham]

No, I'm saying we can. We can mandate training on sexual harassment. We do it in Ontario for workplace violence. There are requirements that employers over a certain size—and the size is pretty small—have to train their employees in workplace violence and workplace harassment. As an employee in the firm in which I work, I recently attended the government of Ontario's webinar that we all had to sign off having attended, and it was fantastic. There are things that governments can do to require better education in the private sector.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Thank you.

[The Chair, NDP, Marie-Claude Morin]

I now give the floor to the official opposition.

Ms. Hassainia, you have seven minutes.

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

Thank you, Madam Chair. I want to share my time with my colleague Mr. Caron.

My question is addressed to Mr. Gaon.

Workplace cultures have a direct impact on the occurrence of sexual harassment. In light of the cases you have dealt with, could you determine what factors might contribute to preventing sexual harassment in workplaces?

[Steven Gaon]

It would be a little difficult to do, but I would say that often when you have a hierarchical system where there are more men at the top of the chain rather than women, you can have that kind of thing exist. In one case that I handled, there were a number of senior women in the office, but the most senior person was a male, and he was the manager who was accused of not dealing appropriately with allegations against a colleague.

I would say to you very simply that there does need to be a cultural change. There's no question about it. The movements we've made toward a more equitable workplace, such as more women in senior positions, will be helpful.

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

I understand that you feel that if more women were given positions of power, there would be fewer cases of sexual harassment.

[Steven Gaon]

That's probably true.

I will tell you this, though. For whatever reason, perhaps even in the majority of cases that I've investigated that involve harassment, there have been allegations of one woman making a harassment complaint against another. It's really just through anecdotal experience that I can tell you that. There are no statistics to back it up. You may be right. You may see fewer cases of sexual harassment. I'm not sure that you would see fewer allegations of harassment in general.

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

Mr. Rootham, do you have something to add to that?

[Christopher Rootham]

No.

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

Thank you.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Rootham, during the previous meeting of this committee, we heard the testimony of a representative from the Canadian Human Rights Commission who mentioned that there was a lack of direction and policies for a victim who wants to leave her workplace when a complaint has been filed.

According to you, aside from the possibility of taking sick leave, for instance, which is far from ideal, how can victims of sexual harassment withdraw from a workplace that has become toxic for them?

[Christopher Rootham]

The legal mechanism is very sparse for that sort of thing. In the core public administration—this is the Treasury Board employees—they are governed by the Public Service Employment Act, which does permit the deployment of a manager who has been found to have harassed his or her subordinates. Aside from that deployment, which takes place at the end of an investigation, there is no legal way to deal with it unless you are going to administratively suspend someone, probably with pay, during that process.

Anecdotally and from my experience, I can tell you that with sick leave the victims of harassment are either left to fend for themselves, or there is some informal mechanism put in place that moves them to a different position, or they are at home on sick leave. None of those things is a best solution.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Are you aware of mechanisms that could improve the work atmosphere in a toxic situation? Indeed, when a victim files a sexual harassment complaint, she is in a difficult situation. Do you have any recommendations concerning mechanisms that could be put in place to make the victim's life easier in harassment cases, among other, while the complaint is being dealt with, aside from having to take sick leave?

[Christopher Rootham]

That's right. There are a number of things that can be done, but each of them would have to be contextual. There is no one solution that's going to fit every single circumstance. Some of the things that can be done are to change the reporting relationship between the victim and the alleged perpetrator of sexual harassment. Another thing would be to move one or the other of them, but there would have to be some voluntary element to that move. It's not fair to force the victim of sexual harassment to change jobs simply because she—usually she—came forward with a complaint. Likewise, it's not fair to the alleged perpetrator to damage his—usually his—career by forcing him to move into a different role or a different managerial position. There would be a stigma attached to that. I don't think there's one answer that would fit for all situations on that point.

You have to look at the context. You have to look at the nature of the workplace. You have to look at how serious the complaint of sexual harassment was, and you have to look at whether an attempt at an immediate informal resolution of the problem was already made and failed.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

The question that perhaps should be asked in that sense is whether we should have a set of options available rather than what we have right now, which seems to be a kind of void in that regard, and once again, taking sick leave. As the tribunal said, there doesn't seem to be any policy or guidance regarding this, so should we develop, as a recommendation, a set of options that would be available in cases where there is an ongoing complaint?

[Christopher Rootham]

Yes, I believe a set of options would certainly be helpful. Whether that's done by legislative change or requires legislative change depends on the type of options you are looking at. A lot of them would be simply changes in policies or practices within the workplace.