We are all awaiting the beginning of our study, but actually I would also like to start the meeting by moving a motion to better clarify the central point of this study dealing with sexual harassment, as well as the role that Status of Women Canada has to play in this study.
Of course, we did our research to make sure the motion was in order.
[English]
Therefore, I'd like to present a motion.
Whereas the Standing Committee for the Status of Women has committed to taking on a study of sexual harassment in the federal workplace,
Whereas it is the mandate of the committee to guide Status of Women Canada,
Whereas it is the legal mandate of Status of Women Canada “to coordinate policy with respect to the status of women and administer related programs”,
Be it resolved that given the severity of allegations of sexual harassment within the Royal Canadian Mounted Police (RCMP) that the Standing Committee on the Status of Women call upon Status of Women Canada to take the lead in coordinating policy with respect to sexual harassment within all federal departments, including the RCMP.
The reason we're putting this motion forward—and as I mentioned, we did research to ensure this motion was permissible—is that we want to make sure the work we're doing here day in and day out is useful, that we're not only studying something for the sake of studying it but that we're also giving some guidance to Status of Women Canada as to the serious issue of sexual harassment, not only in the RCMP but across the federal public service.
We know that today we have the Treasury Board in front of us. This isn't a case of taking over the work of Treasury Board, but is a case of recognizing that Status of Women Canada has a role to play.
It's also very important to clarify and recognize that Status of Women Canada states in its own mandate that it has the capacity to coordinate policy with respect to status of women and administer related programs. It can work with other departments, and that's an issue that has raised some question in the past. I think it is critical that we look to the mandate and take that mandate as the scope of the department, and therefore the kind of role we can play.
As members of the opposition, we would like to see that we're all coming here to give some guidance and that the testimony of witnesses, such as those here today but also others who will be joining us over the next several weeks, can be used to contribute to shaping policy. That's undoubtedly what women who are facing sexual harassment want to see. They don't want to see more studies; they want to see action coming from those studies. We as committee members have a duty to make sure that the work we're doing here, using parliamentary resources, actually amounts to something, that we're taking the feedback of the witnesses we're inviting here seriously and taking it to the next level and directing some kind of action and directing Status of Women Canada to follow its mandate, which is to work with other departments.
I'm very excited to examine the new policy put forward by Treasury Board, but I also realize that one of the policies that has been put forward by the government most recently is Bill , with respect to the RCMP. I've had the chance to be part of the public safety committee in the last couple of weeks, and it's quite clear that work remains to be done when it comes to defining a sexual harassment policy. What better department to do that than Status of Women Canada? What better department to take on a leading role for women in the public service and in the federal workplace than Status of Women Canada?
Again, we're not simply focusing on the RCMP, though we recognize that some of the most serious allegations have come from the RCMP. We note that leadership is required there, as well as in the broader federal civil service. We certainly hope that members around this table will support this motion, will support the need for our committee to give guidance, and will support the mandate of Status of Women Canada to work with others to provide leadership and take the leading role, a role that we can all be proud of in shaping policy when it comes to something as serious as sexual harassment in federal departments, including the RCMP.
Madam Chair, this is meant to provide a scope, a noble goal that we can work toward in this committee: to put the testimonies and the research that we receive to best use and to truly provide leadership for women and for all people who work in the federal civil service and federal departments, including the RCMP.
With that, I would like to put forward the motion. I'd be happy to hear any further discussion and reflection on the importance of defining exactly what we're doing here.
:
Thank you very much, Madam Chair. We're very pleased to be here today to help the committee with this important study.
Harassment in the workplace is unacceptable and will not be tolerated, regardless of its source. We know that it's important for the federal public service to maintain a productive, healthy, and respectful workplace where positive working relationships and practices are promoted. Indeed, the core values and ethics of the public sector explicitly include treating each other with respect and fairness.
Unfortunately, we know that harassment does still occur, and we have taken steps to prevent and respond to these situations by developing a policy on harassment prevention and resolution, a directive on the harassment complaint process, and several guides for departments, as well as by delivering awareness information sessions and training programs. We also offer formal and informal mechanisms to raise issues related to harassment.
Success in the practice of these values will foster a safe and healthy workplace, free from harassment. When allowed to persist, harassment has adverse effects on the mental health and engagement of employees and on the quality of their work.
In a complex and demanding work environment that brings together diverse people, and in which collaboration is essential to success, misunderstandings and interpersonal conflicts are inevitable. The organizational culture influences how colleagues interact with one another and must therefore promote awareness of practices such as good communication and effective interpersonal skills. The ongoing effort to demonstrate respect is everyone's personal responsibility.
[Translation]
The Canadian Human Rights Act provides that every person in the workplace has a right to freedom from harassment based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. These are referred to as prohibited grounds of discrimination. In addition, the act deems sexual harassment to be harassment on a prohibited ground.
The Canadian government has been a leader on policies dealing with harassment in the workplace, being the first employer to introduce a formal policy in 1982. Since 1982, the policy has been revised three times. On October 1, 2012, a renewed policy and a new directive were introduced. The new policy instruments give deputy heads the flexibility to tailor harassment prevention and resolution mechanisms and practices to their operational needs. The new policy instruments emphasize the need for organizations to restore the workplace following an allegation of harassment. They encourage greater use of informal resolution processes and put greater emphasis on the need for organizations to undertake preventive activities and achieve results in a manner that is both respectful to employees and supportive of a more collaborative approach between deputy heads, employees and bargaining agents on harassment prevention and resolution.
The renewed policy and directive continue to reflect the responsibility of deputy heads for establishing and maintaining a respectful and harassment-free workplace, for promptly resolving related complaints, and for monitoring complaints within their organizations.
Harassment prevention is tied to one of the public sector values, respect for people. The new Values and Ethics Code for the Public Sector, which is a condition of employment, was introduced in April 2012, and it provides an opportunity for managers to reinforce the value of respectful relationships. And this is all the more important in times of downsizing. The Treasury Board Secretariat, through the development of its communication tools and dialogues with organizations, encourages a systemic approach which educates and incents respectful behaviour for all employees, in addition to providing awareness training on harassment.
The new Values and Ethics Code for the Public Sector presents an opportunity for promotion of respect and development of related skills, mainly empathic listening, difficult conversations, emotional intelligence, and so forth, for all employees and especially managers.
[English]
The Treasury Board policy applies to the core public administration. The policy on harassment prevention and resolution includes sexual harassment as part of its definition of harassment.
Federal public servants have several mechanisms for making an allegation of sexual harassment. Formal mechanisms include filing a complaint of harassment in accordance with the policy on harassment prevention and resolution, filing a grievance, or filing a complaint with the Canadian Human Rights Commission. Informal mechanisms include discussions with an informal conflict resolution practitioner or with an employee assistance program counsellor.
Through the Treasury Board Secretariat website, several guides and tools are available to public servants, i.e., managers, employees, and persons responsible for the harassment complaint process in the field of harassment. Several courses are available through the joint learning program and through the Canada School of Public Service.
In addition to the Treasury Board policy on harassment prevention and resolution, some departments have developed their own internal policies and tools and are offering awareness sessions and training programs on harassment, so they're actually going further than the requirements of the policy.
I'll talk briefly about harassment statistics. In the 2011 public service employee survey, data regarding harassment indicate that public servants continue to signal a high incidence of perceived harassment, in that 29% of the 201,430 respondents believe that they have experienced harassment of some kind in a federal workplace within the last two years. The actual number of formally filed cases compared with the total number of federal government employees is relatively small. The survey results do not differentiate between sexual harassment and harassment of a personal nature.
The Treasury Board of Canada Secretariat collected limited statistics on harassment of all kinds through the management accountability exercise in 2009-10. The 40 largest departments and agencies that participated reported a total of 314 harassment complaints and/or grievances between November 2009 and October 2010. Of the 314 cases, 77 were determined to be founded by the delegated managers of these organizations. The numbers provided through the MAF included harassment grievances and harassment complaints, which follow two different processes. Again, the results do not differentiate between sexual harassment and harassment of a general nature.
Thank you for your attention. We will now be pleased to take your questions.
:
Thank you very much, Madam Chair.
To the witnesses, thank you so much for coming and helping us. The reason we're doing this study, as you know, is a result of the complaints and issues raised with many of the women in the RCMP. That's the reason we're actually looking at this. I appreciate the fact that you've reviewed your mandate and your policy and are making changes.
Further to that, these numbers that we're talking about give us great concern. You've done that survey of over 200,000 people, gathered in different categories, and one-third of them speak of harassment. The very issue of sexual harassment is the one that we're very focused on.
One of the suggestions is this. Would it be possible for you to go back and do a survey and be more specific? It is important for us to know. It's a difficult issue for people to complain about. It's difficult for many of the women in the RCMP to go forward and lodge a complaint. They're dealing with their superiors, and that doesn't change in any of our departments here. You said a small number actually came forward and lodged these complaints, granted, but I would suspect they were very concerned about their jobs. People do not come forward lightly.
Have you given consideration to possibly quite soon going forward and trying to do another survey on this whole issue, without it being too complex, to try to narrow it down during the same time we're trying to do this study?
:
Madam Chair, honourable members,
[Translation]
Thank you for inviting the Canadian Human Rights Commission to contribute to your study of sexual harassment in Canada's federally-regulated workplaces. I have three main points.
[English]
The first is that despite all the work that has been done to eliminate it, sexual harassment persists; second, that while organizations need to be proactive about it, policies alone are not good enough; and finally, that ending harassment depends on cultural change.
Complaints of sexual harassment are more prevalent in hierarchical, male-dominated organizations. An equitable distribution of power within the workplace helps foster the inclusion of women and a workplace culture of respect.
[Translation]
It is only within our lifetimes that Canada has made strides to stamp out sexual harassment in the workplace. When our mothers joined the labour force, years ago, it was a different story.
[English]
My mother was 15 years old when she got her first job, driving a gravel truck in Stony Mountain, Manitoba. Like many children who lived through the Great Depression, she worked out of necessity to support her family.
Women joining the labour force at that time were routinely subjected to abuse, and there was little they could do about it. Inappropriate comments and jokes, unwanted touching, and uninvited sexual overtures were a condition of work, part of the price you paid for being a female. It was just part of the job. They often just had to put up with it. It was a matter of survival.
Today every person has the right to live and work free from sexual harassment. This right is protected by the Canadian Human Rights Act, by provincial and territorial human rights laws, and by the Canada Labour Code.
[Translation]
All provide recourse to victims of sexual harassment. Today, you can do something about it. But nobody should have to.
[English]
Once an act of sexual harassment has occurred, the damage has been done. Humiliation, stigma, embarrassment, fear, and stress cause emotional pain and suffering. We know emotional suffering to be akin to physical illness in the way it affects an individual. It goes without saying that organizations and society as a whole pay a heavy price in lost productivity. It’s a far, far better thing to prevent harassment from occurring.
Parliament designed the Canadian Human Rights Act as a tool to fight discrimination. The intent of Parliament was to provide equality of opportunity to everyone in Canada. The Canadian Human Rights Commission is responsible for administering the act and promoting equality. We receive discrimination complaints regarding employment and services provided by organizations under federal jurisdiction. This includes the federal public sector, as well as private sector companies involved in industries such as transportation, telecommunications, and banking. The commission screens all the discrimination complaints that it receives. Many are settled through mediation or resolved through a dispute resolution process; in some instances, we refer complaints to the Canadian Human Rights Tribunal for adjudication. The tribunal operates independently of the commission.
Canada was slow to outlaw sexual harassment in the workplace. In fact, sexual harassment was not recognized as a form of discrimination when Parliament passed the Canadian Human Rights Act in 1977. It wasn’t until six years later, in 1983, that it was added as a form of sex discrimination, a definition that was confirmed by the Supreme Court in 1989.
In other words, by the time the right to live and work free of sexual harassment was enshrined in law, women of my mother’s generation were already retiring, having spent all of their working lives without the benefit of these protections. What succeeding generations have found, sadly, is that while laws can protect our rights, they are not a shield. Sexual harassment persists in workplaces in Canada today.
In the past five years, the commission has received 332 complaints related to sexual harassment. More than 85% of these complaints were filed by women. When considering this number, it is important to note that the commission usually only deals with the most intractable complaints. Many sexual harassment complaints from workplaces under federal jurisdiction never come to the commission. They are handled through internal dispute resolution processes, internal grievance processes, or by the Public Service Labour Relations Board, which has jurisdiction to apply the Canadian Human Rights Act.
You will never get a complete picture of the problem from the number of complaints that come forward. We at the commission believe in fact that sexual harassment in the workplace is under-reported. Filing a complaint takes courage. In some organizations, there could be fears of stigma or retaliation. For many, complaining is a last resort. It’s often easier just to quit or to remain silent and take it.
As well, there are gaps in our understanding. We simply have no contemporary data on the prevalence of sexual harassment in Canada. In fact, only one major study has ever been conducted in Canada, and that was in 1994. The honourable members are no doubt aware of that study, entitled “Work-related sexual harassment”, which analyzed survey data collected by Statistics Canada in 1993. The study found that close to 400,000 women—6% of employed women—reported experiencing sexual harassment in the preceding 12 months. The same study found that 2.4 million women had experienced work-related sexual harassment in their working lives.
We can’t tell you what has changed in quantitative terms, because we don’t have the data. Clearly, that’s a gap that needs to be filled
Our laws and redress mechanisms may be effective in providing recourse for those who choose to and have the courage to seek it. However, their influence on human behaviour or the internal culture of an organization is limited. In other words, they do not prevent sexual harassment from occurring or reoccurring, so they do little to protect those who, for whatever reason, are unwilling to speak out.
[Translation]
The Canadian Human Rights Act and the Canada Labour Code place the onus on employers to ensure that employees can work free from sexual harassment.
[English]
According to the 2008 federal jurisdiction workplace survey, 87% of employees who work under federal jurisdiction work for an organization with a harassment prevention program in place, 77% work for an organization with an appeal process against a decision related to harassment, and 76% work for an organization with a dispute or grievance review process.
[Translation]
The smaller the organizations, the less likely they are to have processes like these in place.
[English]
I don't believe it is enough to ensure that victims of sexual harassment have effective recourse. As I said earlier, by the time someone seeks recourse or remedy, the damage is already done. We must find better ways to address the issue before a person's dignity and self-respect suffer injury.
[Translation]
Based on the commission's experience, sexual harassment is more prevalent in hierarchical, male-dominated cultures.
[English]
Addressing sexual harassment in federally regulated workplaces requires a fundamental cultural shift within organizations. It requires a far-reaching commitment to respect for human rights, one that extends to all corners of an organization.
The commission believes that an equitable distribution of power within the workplace, with an equitable representation of women in positions of responsibility, fosters respect for human rights, inclusion, and diversity. However, the proportion of women employed in senior management in Canada has remained relatively unchanged over the past two decades, according to the Conference Board of Canada's 2011 report. Men have been two to three times more likely than women to hold senior management positions in both the private and the public sectors.
The latest employment equity figures show that in the federally regulated private sector, women held 42% of the jobs but only 22% of senior management positions. In the federal public service, women held 55% of the jobs but only 45% of senior management positions.
[Translation]
So that's another gap, another piece of the puzzle that needs to be addressed. The fact that close to three decades after sexual harassment was added to the Canadian Human Rights Act we are sitting here...
:
Good morning. Thank you, Madam Chair and honourable members, for the invitation to appear before your committee today as you begin your very important study of sexual harassment in federally regulated workplaces. I am joined by two colleagues from my office: Rachel Boyer, executive director and registrar at the Canadian Human Rights Tribunal, and Greg Miller, legal counsel.
Upon review of the questions that the committee seeks to address with its study, I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with complaints of sexual harassment. In closing, I will provide the committee with some statistical information that may be of interest.
The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act. You have already heard from my colleague from the Canadian Human Rights Commission. It is important to note that there is significant interplay in the contributions each organization makes towards the resolution of discrimination complaints under the CHRA. However, there are important distinctions to be drawn as well: while the commission’s mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints. In the context of the Canadian Human Rights Act, this adjudication process is referred to as an inquiry.
An individual who believes that sexual harassment has occurred within the meaning of the Canadian Human Rights Act can file a complaint to this effect with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request to the tribunal to inquire into the complaint.
The inquiry mandated under the Canadian Human Rights Act has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. The tribunal’s hearings have much the same attributes and structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The parties who are entitled to appear before the tribunal include the individual who filed the complaint, the complainant; the person alleged to have engaged in the discriminatory practice, meaning the respondent; and the commission, the agency that initiated the inquiry process.
As Parliament assigned to the tribunal only the role of adjudication, it cannot be involved in crafting policy. It has no regulatory role vis-à-vis employment practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.
A number of consequences flow from the court-like structure and focused mandate of the tribunal. Its members are required to maintain a high degree of independence from the executive branch of government—for example, the Treasury Board, the Department of Justice, or HRSDC. Furthermore, to conserve impartiality, it is important for an adjudicator to adopt and retain a position of neutrality with respect to the issues that can and will be debated in the cases that he or she may be called upon to decide.
In the context of the current briefing and the work of this committee, these principles prevent tribunal members, including myself, from issuing opinions on many of the matters that will be discussed in your study of sexual harassment in the federally regulated workplace, which is not to say that tribunal members will never make findings on any of these issues. On the contrary, they have done so frequently, and will be called upon to do so again in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions made by parties to a case, along with the evidence led and the applicable legal principle, which leads me to my next topic.
What are the legal principles the tribunal applies to complaints of sexual harassment? How do we define sexual harassment? The answers to these questions originate in our enabling legislation, the Canadian Human Rights Act.
This legislation designates 11 prohibited grounds of discrimination, including discrimination based on sex. It also proscribes roughly 11 discriminatory practices, including the discriminatory practice set out in paragraph (c) of subsection 14(1), which provides that it is a discriminatory practice to harass an individual in matters related to employment on a prohibited ground. I would add that the eradication of sexual harassment was a matter of particular seriousness for Parliament, as evidenced by its being expressly mentioned in subsection 14(2) of the Canadian Human Rights Act.
The legal meaning of harassment generally, and sexual harassment in particular, for the purposes of section 14, has been defined in the jurisprudence of the superior courts, and has been developed by the decisions of the tribunal itself in individual cases.
When a complaint of sexual harassment is referred to the tribunal for an inquiry, the tribunal member, after hearing all of the evidence and arguments, generally has to decide whether the conduct at issue was unwelcome; sexual in nature; sufficiently persistent, repetitive, or severe enough to create a poisoned workplace; and, in certain circumstances, whether the employee had notified the employer of the offensive conduct. If the tribunal determines that the impugned conduct fulfills these criteria, it can issue a number of remedial orders against the person found to have engaged in sexual harassment.
In this last regard, it is worth noting that the respondent parties in sexual harassment complaints typically fall into two categories: the alleged harasser—generally the victim's co-worker or superior who allegedly subjected the individual to the harassment—and/or the employer, who has a legislative duty to exercise all due diligence to prevent harassment and mitigate or avoid its effects, failing which it is held responsible for the harassment.
Where the harassment complaint has been substantiated, orders can be made against either the individual harasser or the employer or both.
Finally, discussion of the tribunal's resolution of complaints would not be complete without mentioning that a significant portion of complaints referred to the tribunal are resolved by tribunal members mediating the complaints to facilitate settlements by parties and that tribunal members have been mediating human rights complaints for well over a decade.
However, it is important to note that we have also adopted special measures to mitigate the effects of any power imbalance that may exist in negotiations between complainants and respondents, which are of particular concern in harassment cases.
Finally, I would like to provide you with some indication of the number of sexual harassment cases at the tribunal and the proportion that they make up of the tribunal's total caseload. Before I do so, there are a number of baseline considerations that should be taken into account.
As has been alluded to, not all federal discrimination matters become complaints filed with the commission. Of the complaints filed with the commission, it is important to realize that only a small subset are referred to the tribunal for an inquiry. Moreover, of the total number of discrimination complaints referred to the tribunal for an inquiry, only a very small portion allege harassment in employment on the grounds of sex. Finally, not all complaints of harassment are found by the tribunal to be substantiated. Some are dismissed at the conclusion of the inquiry because the adjudicator has found that the evidence has not satisfied the legal requirements to prove harassment.
That said, the statistics that follow may be of assistance to the committee.
The commission has referred 600 complaints to the tribunal since 2008, and those are complaints under all headings of discrimination. Of those 600 complaints, 36 received since April 2008 have alleged harassment in matters related to employment and on the prohibited grounds of sex. Those represent 6% of the total referrals.
Perhaps of further interest to the committee as it pursues its study is a breakdown by respondent groups.
Of the 36 complaints I referred to involving harassment, 20 were against federally regulated companies and/or individuals employed therein, i.e., non-governmental entities. That equals 3% of the total referrals to the tribunal.
Nine of those complaints are against federal government and/or individuals therein. They account for 1.5% of the total referrals to the tribunal.
Finally, seven are against first nations and/or individuals employed therein.
In conclusion, I hope this presentation has been of assistance to the committee, and I would be pleased to provide any additional information or answer any questions you might have.
Thank you, Madam Chair.