Culture of enforcement

Ghomeshi, Parliament Hill scandals highlight gap between policy and practice
By Liz Bernier
|Canadian HR Reporter|Last Updated: 12/02/2014

It’s pretty easy to draft a workplace anti-harassment policy. We’ve seen it on posters and read it in policies time and again: “Harassment will not be tolerated.”

Where employers tend to drop the ball is when harassment happens anyway and it comes time to actually enforce the policy.

That was a central theme in recent weeks as news continued to unfold around the Jian Ghomeshi scandal, and a separate story arose about workplace sexual harassment among federal politicians. 

At press time, nine different women had come forward with allegations Ghomeshi sexually or physically assaulted them. At least three of them are having their complaints investigated by police.  

The CBC has hired an external investigator, Toronto-based employment lawyer Janice Rubin of Rubin Thomlinson, to look into allegations of workplace sexual harassment by Ghomeshi. The CBC “clearly mishandled” a 2010 sexual harassment complaint against Ghomeshi, said Heather Conway, head of CBC English language services, in which the complainant was told Ghomeshi is “never going to change.” 

Parliament Hill faced a workplace scandal of its own, with two female New Democrat MPs accusing two male Liberal MPs of “inappropriate conduct.” Their allegations prompted former deputy prime minister Sheila Copps to reveal she had been sexually assaulted by a fellow MP when she was in her 20s. 

Political response

Ontario Premier Kathleen Wynne said she was open to a study of workplace sexual harassment after Laurie Scott, MPP and Progressive Conservative critic for women’s issues, asked her to strike an all-party committee to study the issue. 

“We owe it to the victims of sexual harassment to have this discussion,” said Scott. 

Wynne said she is open to doing whatever is necessary to address the issue, but would not yet commit to a specific process.

If one thing is clear, it’s that simply having a policy in place is not enough.  

“What we’re talking about is whether the culture of enforcement and the culture of ongoing review and training is actually taking place,” said Wynne.

Most employers have anti-harassment policies on the books, which cover sexual harassment. And in Ontario, Bill 168 makes it abundantly clear workplace harassment is not to be tolerated, said the province’s labour minister, Kevin Flynn, during question period on Nov. 5. 

“What men and women in this province need to know is if they are suffering violence or harassment in the workplace, they have the right to refuse that work,” he said.  

But having the rules written out in black and white isn’t enough if employers don’t act on them, said David Whitten, partner at Whitten & Lublin in Toronto. With Bill 168, every employer in Ontario went and put violence and harassment policies in place, he said. 

“But I think a lot of them… didn’t do much more with it, so the policies really don’t have a lot of teeth. They’re either unknown or they were glossed over and people were not properly trained on them. And, absent training, they’re really not that effective. So I think that is a big gap that exists.

“These policies, as we say in employment law, are really only as good as they’re promulgated.”

Power dynamics

Policies can be particularly ineffective when there are significant power imbalances, as in the Ghomeshi case, said Holly Johnson, associate professor and criminologist at the University of Ottawa. 

“Women are often afraid to come forward because, in the workplace, their jobs are precarious or the person who’s harassing them has power over them, has power over their career, has power over their promotions, their reputation. It’s very often someone with a great deal more power,” she said. 

“So women are reporting to management and management are the problem — or somebody in management is the problem.

“We’ve got all of these policies but they get swept under the carpet.”

In most cases, the harasser is someone in a position of power — which can have a real impact on enforcement, said Whitten. 

“It’s (a definite) factor when you’re dealing with a superior. And oftentimes — I would say, in my experience, 60, 70 per cent of the time — it is a superior or a manager that is harassing a subordinate. It’s not as common for it to be peer-on-peer.” 

It’s rare for a complaint to be made to a group or individual who is totally independent of the perpetrator, said Johnson. So it’s easy to ignore the problem or simply shuffle the complainant off to a different department. 

“She’s just got to put up with it or leave… so the message to the guy is that it’s OK. And it continues,” she said. 

Sexual assault and harassment is much more common than most of us realize and we’re really behind the times on collecting data about it, said Johnson. 

“We think we’ve made a lot of progress but, in this one particular area, we haven’t,” she said.

It’s a critical issue that affects us all, said Wynne. 

“It affects every single one of us in the sense that we all have to be vigilant and not pretend that somehow this issue has been resolved because it’s 2014 and we’ve moved on. It’s very real.”

Creating accountability

So how do you create a culture of enforcement, where perpetrators are actually held to account? That’s the critical question, according to Elizabeth Sheehy, vice-dean of research and a law professor at the University of Ottawa.  

“Obviously, it takes great and strong leadership but it also requires moral courage on the part of employers, to stand up to those bullies,” she said. “It’s really hard also in certain environments when you know that the person who you’re accusing will have the support of a union or of many other senior men in an organization. So I think employers have to figure out what it is they can possibly do to equalize the playing field so that women can report and have access to a fair process.”

We need to make sure women have advocates and those in power positions stop protecting perpetrators, she said. 

The accountability piece has to come first if we want women to be unafraid to report incidents, said Johnson.

“Accountability has got to come first. If there isn’t a place to report that’s going to have some benefit or some effect, there’s no point in reporting,” she said. 

“Yeah, we need policies… (but) we also need commitment. And, very often, the senior managers are putting the priority on something else, or putting the priority on economics. Or they’re buddies with the guy or they’re in the same kind of strata as the guy. So you need commitment from management.”

That commitment to accountability is the key, said Sheehy. 

“Perpetrators do perpetrate in part because they know they can get away with it. In fact, they count on it. (Those who commit violence against women) count on our disbelief of women, or failure to support them,” she said. 

“This isn’t just requiring individual perpetrators to be held accountable, but it’s also a much broader deterrence message that women and their lives matter, and that we will not play a role in enabling or hiding or sheltering these perpetrators.”

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