Good morning, Madam Chair, and members of the committee. The Women's Legal Education and Action Fund appreciates the opportunity to appear this morning before this committee.
LEAF is a national organization dedicated to promoting substantive equality for women through legal action, research, and public education. LEAF has intervened in over 150 cases on substantive equality since its founding in 1985, and is a leading expert in the inequality and discrimination experienced by Canadian women. Central to LEAF’s commitment to substantive equality is addressing the inequalities suffered by women who experience discrimination on multiple or intersecting grounds, such as poverty, aboriginal identity, disability, race, sexual orientation, and religion.
In the landmark case of Janzen v. Platy Enterprises in 1989, Chief Justice Dickson cited LEAF's factum in the unanimous decision of the court, declaring that sexual harassment is a form of sex discrimination because it denies women equality of opportunity in employment because of their sex. LEAF has continued to advocate on behalf of women who experience sexual harassment in the workplace.
Harassment on the job is a serious problem for Canadian women, and I know you've been hearing from many witnesses saying this. In the 2011 public service employee survey—I know other witnesses have quoted that survey as well—of the almost 200,000 respondents, 17%, or 33,000 people, indicated they had been a victim of harassment at least once in the previous two years. An additional 12% had experienced harassment at least twice over the course of the previous two years. Only 31% of the respondents felt their department or agency was working hard to create an environment that was free from harassment and trying to prevent it.
Unfortunately, that survey did not track any data for sexual harassment specifically, but LEAF submits, and I know from my experience working in this field, workplace harassment often does involve an element of discrimination based on gender.
Harassment has a serious negative effect on employees who are victims, but it also has an impact on employers. Employees who are harassed can suffer from all sorts of physical and psychological ailments—headaches, all sorts of stress-related difficulties, anxiety, post-traumatic stress disorder, and so on—ultimately forcing them to take sick leave, and as we see way too frequently, forcing them to leave the workplace altogether. This, of course, has a financial impact on the individual and can derail a career completely.
For an employer, the impacts are diminished morale throughout the workplace, high staff turnover, and huge loss of time as other employees are drawn into an investigation as witnesses, or simply as something going on in the department.
Current complaint avenues and channels are confusing for an individual. There's no clear place to go. We have legislation. We have the Canadian Human Rights Act that states employees are entitled to a workplace free from harassment. The Canada Labour Code requires employers to have anti-harassment policies in place and to do training. In October of 2012 the new Treasury Board policy on harassment was introduced. This was developed through consultation with all of the public service unions. On paper the policy looks very good. Unfortunately, it is going to have the same problems that have traditionally existed, and I'll describe what those are.
It's the application of the policy that is of concern. The new policy still relies on a person bringing a complaint forward. As this committee has heard, in many workplaces that's a very difficult thing to do. The institutional culture is also known to discourage that. That same lack of willingness or ability to report a complaint exists in many places, not only the notorious ones, however.
No matter how well written a policy may be, if it's triggered by an individual having to complain internally to her direct supervisor, who perhaps himself or herself is involved in the climate of harassment—may have been part of it, may have a relationship, be a friend, whatever, of the person who is being accused of harassment—it's going to be very uncomfortable for the complainant to bring forward a complaint of harassment and expect that it's going to be dealt with in a fair manner.
Even if the internal complaint process is triggered, and if the individual comes forward, there's often a feeling that there's little support or information given during the process about the steps being taken, or even about the outcome.
There are no real remedies at the end of the day, no perfect solutions. The ideal solution right now is that the complaint will be upheld, that some form of discipline will be upheld. What we see, though, is that the harasser frequently remains in the department, leaving the complainant still feeling vulnerable. It's not vindication; it doesn't make life easier for the most part.
We see the pattern again for the complainant—the prior harassment, the ongoing harassment, frequently leads to the health symptoms persisting and the individual leaving the workplace entirely, ending a career. Even where a toxic workplace has been identified, the available processes are still not going to ensure that harassment is addressed. In this way, the inequality is perpetuated.
There currently is one third-party model that an individual can use. It sounds like a solution but it's not. It's the Canadian human rights process. Unfortunately, it's cumbersome, awkward. It's a two-step process. First, a complaint has to go to the commission, but it's hugely understaffed. In 2011, there were two full-time and three part-time commissioners who reviewed 1,914 potential complaints and referred only 129 of them to the tribunal. So the commission acts as a gatekeeper and refers only a very small number of cases.
The commission also looks to see if there's another avenue of recourse for the complainant. If there is, that is where the complainant has to go. So this is not an effective avenue of recourse for individuals in the federal workplace. The tribunal itself is in very bad shape right now. It currently has an acting chair, one full-time member, and seven part-time members. In 2012, the tribunal released only 30 decisions.
How do we improve the system? The biggest difficulty is that the individual has to report within her environment, where there could have been decades of harassment. There needs to be some mechanism that would allow a woman to talk about her complaint; learn what the remedies and possible avenues are, as well as their pitfalls, timing, and possible repercussions; and get reassurance that her career is not going to end by filing a complaint. That really is the impediment right now.
We need a third-party, neutral avenue where complainants can go. I believe the next witness you will be hearing, the Law Society of Upper Canada, will be talking about a new direct-access model that has been developed in the legal area. It's not necessarily applicable here, but it's an interesting concept. It gives a freedom that currently does not exist under even this revamped Treasury Board policy.