Sexual harassment at work persists
Ontario’s Human Rights Legal Support Centre gets three calls about it every day, almost all from women
Deborah, a 39-year-old single mother, took a job tending bar at an Ajax establishment early in 2009. It wasn’t long before the 66-year-old owner began to express romantic interest in her, asking her out on dates and commenting on how much he liked her derrière, the woman later testified at a hearing
“She stated that he frequently patted her buttocks with his hand, made noises when she bent over, told her she had a ‘nice ass’ or used similar words, and said that he was going to bend her over the pool table and smack her bare ass,” read the decision rendered at a Human Rights Tribunal of Ontario in April 2013.
The suggestive language, unwanted touching and bar owner’s advances continued, she testified, until later that year, when her employment was terminated by the owner. Deborah said she was told she was fired because she was having sex with customers — which she denied — and her behaviour was hurting the reputation of the bar.
Afterward, the owner personally delivered letters to the woman’s home that expressed regret “we couldn’t have the relationship that I wanted” and insulted Deborah in vulgar terms.
The owner said the accusations against him were untrue, but the tribunal’s adjudicator sided with the woman, declared it was a case of workplace sexual harassment and ruled the bar owner pay Deborah $35,000 as “compensation for injury to dignity, feelings and self-respect” and another $4,868.86 in lost income.
Sexual harassment in the workplace, long an issue of power and gender inequality, has become a hot topic in media and social discourse over the past two weeks because of two high profile cases.
Employment lawyer Janice Rubin is investigating allegations involving Jian Ghomeshi within the CBC that first surfaced in a Toronto Star investigation. The popular radio host is alleged to have grabbed the buttocks of another CBC employee and, on another occasion, told her: “I want to hate f--- you.”
The woman said she had complained about Ghomeshi’s actions to a union rep who, in turn, spoke to a producer. No definitive action was taken by the broadcaster at the time and the woman left the CBC.
Ghomeshi was eventually fired, but only after the Star and other media outlets published accounts from nine women who allege he sexually assaulted and physically abused them.
On Parliament Hill on Wednesday, two Liberal MPs — Scott Andrews and Massimo Pacetti — were ejected from caucus for personal misconduct. Liberal leader Justin Trudeau hinted that the allegations involved workplace harassment.
In the wake of the Ghomeshi revelations, Toronto mayor-elect John Tory said he wanted to ensure there is no sexual harassment at city hall, and Ontario premier Kathleen Wynne said she has taken action on complaints of sexual harassment at Queen’s Park.
While those events, and their fallout, have pushed the topic into the spotlight, those who help the victims of such abuse or who give legal counsel to those involved say sexual harassment on the job is a persistent and relentless issue for employees even when it is not dominating the headlines.
“It’s an ongoing situation for many, many, many women in the workplace,” says Jennifer Ramsay, a spokesperson for the Human Rights Legal Support Centre.
“It’s never, ever stopped.”
The support centre, an independent body funded by the provincial Attorney General’s office, received 1,173 calls during the fiscal year ending on March 31 that were about how to deal with sexual harassment in the workplace.
That’s three a day from across the province. And it doesn’t include those who felt they were harassed but received a satisfactory resolution from their employer, those who sought help elsewhere or those who believed they were being harassed but said nothing, usually out of apprehension.
“It’s happening every day,” says Kathy Laird, executive director of the Human Rights Legal Support Centre. “Women are always looking away and deciding it’s not worth raising because it might put a damper on their career or it might result in them not getting as many shifts, if they’re in a workplace where they are dependent on having favour with management in order to get hours of work.
“Very often the person doing the harassing is in a position of superiority in the workplace, that’s the most usual situation, so there are always risks to coming forward. So women quietly look for another job, try to get switched to a different shift, try to get moved to a different part of the workplace or try to surround themselves with co-workers so they’re never alone with the person. Woman have all kinds of strategies and in many, many workplaces, this is happening all the time.”
It is almost always women. The centre does get a few calls from men that, typically, involve harassment based on sexual orientation rather than gender. The centre has experienced a slight uptick in calls about sexual harassment since the Ghomeshi story broke in late October.
Many of the callers to the centre did not pursue the free service beyond an initial phone conversation.
“Often, after speaking with us, they will elect not to go forward,” says Ramsay. “Although the tribunal is a respectful place, it still means you have to face the person, give evidence and be cross-examined. There are witnesses and there are documents. Sometimes, when we go through all that, a woman says, ‘You know what, I don’t want to do this.’ ”
Other times, a resolution is mediated between the two parties before it goes to the tribunal. The centre did not immediately have a breakdown of those numbers — the body only recently began categorizing the nature of the 25,000 calls about a variety of issues it receives each year — but 39 cases did get mediated formally at the tribunal and five additional cases went to full hearing when mediation was impossible.
Negotiated settlements typically include compensatory payment to the victim and some implementation of education within the workplace to help change the existing culture
Those cases, like Deborah’s, are part of the public record, with graphic details and, sometimes, names attached.
Sometimes the harassment is subtle — a boss who hovers and is overly complimentary with sexually-tinged comments that leave an employee uncomfortable performing her job and queasy about what might be coming next. Or it may be so overt that a promise of a promotion or raise, or simply maintaining a current job, is contingent on engaging in a clearly defined sexual act.
It is almost impossible to put numbers on how many people believe they have been sexually harassed at work.
“I would think most cases are resolved internally,” says employment lawyer Israel Balter, who has specialized in workplace harassment and discrimination for 25 years.
“Most cases do not go to tribunal. There’s a very simple reason: the embarrassment
“Women are always looking away and deciding it’s not worth raising because it might put a damper on their career or it might result in them not getting as many shifts.” KATHY LAIRD EXECUTIVE DIRECTOR, HUMAN RIGHTS LEGAL SUPPORT CENTRE
factor. There’s embarrassment of the employer, there’s embarrassment for the individual employee. The ugliness of it typically propels people to resolve it.”
While the Human Rights Code, the Ontario Health and Safety Act and the Criminal Code all have provisions that deal with an employer’s responsibility to protect employees from harm, it still remains a challenge for some women to raise issues about how they are treated by a superior.
“From a legislative standpoint, we have made progress, but from a practical standpoint, I think I would have to say things are better but there is still a long, long way to go,” says Kevin Robinson, a Toronto labour lawyer who has been called in to investigate or has advised clients in well over 100 cases of workplace sexual harassment over the past 15 years.
“I think some of the press we have read over the past two weeks about people who have either been abused or harassed and are reluctant to step forward (shows) it continues to be a pervasive problem in the workplace.”
Robinson sites several reasons why women are sometimes hesitant to seek help when they feel they are the victim of workplace sexual harassment.
They believe, based on their own observations, that if they complain, nothing will be done. When a woman does pour out her heart but receives no satisfactory end result, he says, it has a chilling effect on other women who are weighing whether to seek help.
Some women, Robinson says, fear they will lose their jobs if they are honest with their employer about how they are being treated in the workplace.
Others fear retaliation or reprisal and, he notes, “the last one is what we’re reading about this week. Sometimes people do feel that perhaps they participated in it in some fashion or encouraged it in some fashion and feel guilty about it. So there’d be some personal shame in bringing it forward. Not that there should be, but that’s a legitimate subjective concern.”
Laird suggests that, if a woman feels she is being harassed, she should talk to someone that she trusts, whether it be a co-worker, a family member or an employee in the human resources department if she is working for a larger company.
“Even if the ultimate decision is not to go ahead with any kind of formal complaint, it’s important in terms of recovery to be sharing that story with at least one other person at the beginning,” she says.
Robinson, the employment lawyer, adds that “there’s never any harm in documenting your concerns and making notes about what happened.”
He said a person should then read the policies her employer has on sexual harassment to learn what falls into that category. Those policies should also explain who she should report the harassment to and what response she should anticipate.
“The reality is that once you get past the threshold of reporting it, the employer’s obligations kick in,” he says. “It’s very clear that they have an obligation to investigate these things. It’s very clear that no one can be subject to reprisal for bringing forward a complaint in good faith.
“Not saying anything is never going to make it stop. The only way to change it is to report it and have the process take care of it.”