THE FAIRNESS FACTOR
When the very private matter of alleged workplace harassment gets played out in the media glare, how just can the process be? Is it a coincidence that several recent cases have involved prominent women? Marian Scott looks for answers.
“A house of horrors.”
“Bullying and harassment at its worst.”
Governor- General Julie Payette has reduced employees to tears by yelling at, belittling and publicly humiliating them, recent media reports allege.
Payette’s reported misdeeds are just the latest in a string of very public allegations of workplace harassment involving prominent Quebec women.
On July 13, the Montreal Museum of Fine Arts (MMFA) ousted its famed director, Nathalie Bondil, citing a toxic work environment.
In municipal politics, Côte-desneiges—notre-dame-deGrâce Mayor Sue Montgomery is fighting accusations she turned a blind eye to the harassment of her borough manager and another civil servant by her chief of staff.
And Tamara Thermitus, the former head of the Quebec Human Rights and Youth Rights Commission, is contesting allegations of mismanagement, psychological harassment and abuse of authority that led to her forced resignation in late 2018.
Isolated incidents? Symptoms of a growing plague of workplace abuse? Or unfounded allegations against powerful women?
As a wave of denunciations brings psychological and sexual harassment to the fore in Quebec, some of the high-profile women accused of perpetrating or tolerating workplace harassment are questioning the fairness of the process.
Since reports on workplace harassment usually are confidential, it’s impossible for an outside observer to draw conclusions on individual cases, say three legal experts consulted by the Montreal Gazette.
But it’s curious to see four high-profile cases involving women, they noted.
“I don’t have any inside information, and I’m sure women can be just as harassing as men, but it gives me pause,” said Finn Makela, a law professor at the Université de Sherbrooke specializing in labour and employment law.
“It makes me think, ‘Is it possible that if a man has a managerial style that would be described as tough but fair, when a woman displays those same characteristics, she’s described as being a harasser?’” he asked.
It raises eyebrows to see a series of high-ranking women accused of workplace harassment, said Katherine Lippel, Distinguished Research Chair in Occupational Health and Safety Law at the University of Ottawa.
“We’re so used to men harassing people, we don’t notice. When it becomes women who are being pointed at, we do wonder,” she said.
Workplace harassment affects 19 per cent of women and 13 per cent of men in the Canadian labour force, according to a 2018 Statistics Canada study.
Verbal abuse at work is the most common complaint, with 13 per cent of women and 10 per cent of men saying they had been victims of it in the past year. Humiliating behaviour came next, affecting six per cent of women and five per cent of men.
Four per cent of women said they’d experienced sexual harassment on the job in the past year, compared to fewer than one per cent of men.
Three per cent of women and 1.5 per cent of men said they’d been victims of physical violence at work.
“It’s no longer socially acceptable to tolerate harassment, be it sexual or be it psychological harassment,” Lippel said.
Quebec was ahead of the curve in adopting a workplace harassment law that came into force in 2004, she said.
“It was the first law in North America. It is, I think, a very progressive piece of legislation,” said Lippel, who was consulted on the bill before its adoption.
The province’s Labour Standards Act defines psychological harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment.”
It stipulates that employees have a right to a harassment-free work environment and that employers must take reasonable action to prevent harassment, or put a stop to it if they become aware of it.
Other provinces have since passed similar laws, Lippel noted.
In 2018, Quebec made it mandatory for employers to have a harassment policy.
Anti-harassment laws have given birth to a private consulting industry specialized in investigating and producing reports on alleged workplace harassment, she said.
But some critics say that while eliminating workplace harassment is a laudable goal, those accused on the basis of internal, confidential reports are being denied due process.
“There’s a whole issue around a fundamental legal principle, audi alteram partem, which means ‘hear the other side,’” human rights lawyer Pearl Eliadis said.
“How can the person possibly protect themselves when they’re told that there’s some secret report floating out there that they have not had the opportunity to see? I find it so interesting that this principle of hearing the other side is fundamental in every single legal area except for employment law,” she said.
The very nature of the employment relationship means that safeguards protecting the rights of the accused in the justice system don’t necessarily apply, Makela said.
“It’s incredibly unfair to employees, including managers,” he said.
The Canadian Charter of Rights and Freedoms states that anyone charged with an offence is presumed innocent until proven guilty in a fair hearing by an impartial tribunal.
But when a workplace investigation concludes that harassment has occurred, the burden of proof is on the person accused to show that he or she did not commit the abuse, he said.
“The workplace is not a place that’s built around the ideals of democracy and justice,” Makela said.
“We would never accept in the criminal justice system that we throw you in jail and once you’re in jail, you sue to get out,” he said.
“Our whole labour law system is set up such that the employer has the prerogative of power. Only once that power has been exercised is it up to the employee, if they are dissatisfied or think they’ve been treated unfairly, to sue,” he said.
All four of the high-profile cases have received intense media coverage, with stories leaked to the press by one or both sides in the conflicts.
That means the public is fed tidbits of information but not the whole story, Eliadis said.
The news cycle operates at warp speed, while the legal process grinds slowly, she noted.
“Sometimes when there’s a legal process going on, the other side can’t comment. So it creates a situation that’s inherently unfair for either side, depending on how the information is leaked,” she said.
In an interview, Bondil dismissed the MMFA board’s claim of a toxic work climate at the museum as “unfounded allegations” and “a smear to hide poor governance.”
Yes, there is high pressure in the workplace, but the harassment that was used to justify the non-renewal of her contract was an isolated case, which was dealt with, she said.
“I never tolerated it,” Bondil said, noting that she oversaw the adoption of an anti-harassment policy at the museum in the fall of 2018.
In an online comment on a 4,869-signature petition supporting Bondil, Montgomery charged that harassment allegations are being used to tarnish unwanted employees.
“I believe strong, competent women are being accused of psychological harassment without due process in order to get rid of them,” she wrote.
Montgomery is awaiting decisions from the Quebec Superior Court and Quebec Municipal Commission in her conflict with the City of Montreal over the alleged harassment.
Thermitus is seeking to overturn a report by Quebec’s ombudsman that cast her as a bad boss, forcing her to step down as the first racialized president of the human rights commission.
She claims she was only trying to improve service and reduce long delays in handling human rights complaints.
Last year, she won a first round in Quebec Superior Court when Justice André Prévost rejected a motion to dismiss the case. The judge ripped into the ombudsman for having submitted the first draft of a report on Thermitus’s alleged mismanagement before having heard Thermitus’s version of events.
Ultimately, the best way to solve harassment is not through legal proceedings but in working to improve workplace dynamics, Makela said.
“The law is a pretty blunt instrument,” he said.
“Maybe the solution is not more laws or less laws,” he said, “but more attention given to organizational culture, to industrial psychology, to creating workplaces where people get along, rather than saying, OK, we’re just going to keep doing things the way we used to do them, and if there’s a conflict, we turn to the law.”
Is it possible that if a man has a managerial style that would be described as tough but fair, when a woman displays those same characteristics, she’s described as being a harasser?