Newfoundland and Labrador pushes for greater workplace protections
It was a ruling that disappointed many in Newfoundland and Labrador, and beyond. A man accused of directing a sexist slur against TV reporter Heather Gillis of NTV in St. John’s in 2017 was found not guilty on Feb. 20 when it came to his interfering with the public peace.
While the judge sympathized with Gillis’ concerns, the alleged offence did not meet the legal requirements.
Female reporters increasingly face this type of harassment when they report live from a scene. And it’s one of the reasons Cathy Bennett, member of the Newfoundland and Labrador House of Assembly for Windsor Lake, announced on Feb. 20 she would be introducing a private member’s motion calling on the provincial government to amend the Labour Standards Act, the Labour Relations Act and the Occupational Health and Safety Act to address the specific issue of sexual harassment in the workplace.
Citing the #MeToo movement — used on social media to demonstrate the widespread prevalence of sexual assault and harassment, especially at work — Bennett said laws must keep up with society, and there’s a moral obligation to keep workplaces safe.
“It’s evident that we still see substantial situations where women are harassed, particularly sexually harassed in the workplace. And when we think about what’s changing in the world with the #MeToo movement, I just felt that it’s time that we look at the actual laws and whether or not there are things we can do in the language of the laws that make it prohibitive,” she said.
“Quite frankly, I think the language should be very clear that sexual harassment is against the law.”
Societal expectations have significantly changed in this area, and the laws haven’t kept up, said Bennett, a member of the province’s governing Liberal party.
“We’ve had decades of males making the laws. When you put a gender policy lens on the creation of the law, then different things get brought to the surface. And while we have many meaningful and responsible men in legislatures across the country, including my own, it does require that women who are in legislature stand up for things that are different for us,” she said.
“There’s all kinds of workplaces that are used by men and women, and there needs to be laws covering all of those workplaces so that women don’t have to put up with this type of behaviour.”
A lot of legislation has been around for a long time, and while changing and updating it isn’t a fast process, jurisdictions and institutions are starting to realize, “My god, we really do need to update and modernize… because…. now is the time to deal with it,” said Linda Ross, president and CEO of the NL Provincial Advisory Council on the Status of Women in St. John’s.
It’s about opening up the laws and taking a look at them to see whether or not they can be strengthened, she said: “Where we need better language, and if there are things we should be doing that we’re not doing at the present time, in terms of the kinds of issues that are covered under those particular acts.”
“The unfortunate thing is it takes a composite of things like harassment and #MeToo and everything else to trigger it — but better late than never.”
In the past, a lot of what was referred to as the workplace was really about bricks and mortar, said Ross, but today, “any kind of harassment can be work-related… as evidenced by journalists who are doing their work in the street or harassment on social media that takes place, and we need language that addresses that, the changing times.”
Changing the law
While Newfoundland and Labrador has a human rights code, along with the common law remedy for employees, those are reactive measures, according to Greg French, founding member of French Law Offices in St. John’s.
“There’s nothing really, from a proactive standpoint obligation, on the employer to have a policy or do an investigation when something comes forward, or any of those things that we are seeing from other jurisdictions.”
The Canada Labour Code and Ontario (under Bill 132) specifically address sexual harassment, with the latter obliging employers to have a program and do investigations, he said.
“All of those positive obligations really don’t exist in Newfoundland and Labrador,” said French.
“Of course, if you’re an employee and you’re mistreated, you have the human rights avenue, you certainly have claims and torts for harassment and you can sue the employer for not providing a proper environment and all that stuff, but I don’t think your claims are as strong as they would be in Ontario.”
That’s one of the advantages to Newfoundland and Labrador’s proposed legislation, said Ross.
“One would like to think the process is a lot more expeditious if it’s in the workplace as opposed to having to take it through the human rights process, which is a lengthier endeavour, and costlier.”
With Ontario bringing in Bill 132 in 2016, it felt almost redundant and political when the government expanded the definition of workplace harassment and sexual harassment, said Shana French, a lawyer at Sherrard Kuzz in Toronto.
“But the teeth that it put in and the awareness that it raised has really had a profound impact… It’s helpful to have something as a reference point so (employers understand) their obligations... to have a bit of a playbook.”
However, Ontario employers may tick the appropriate boxes when it comes to having a policy and providing training around harassment, but they’re struggling when it comes to the investigation piece, said French (wife of Greg French).
“Employers are incurring a lot of expenses and there’s confusion about when to conduct an investigation, who a qualified person is, ‘Can I have someone raise an issue in a discipline meeting…?’ Employers are struggling a little bit with right-sizing those obligations with the practicality of it.”
Protecting the worker
However, it’s not clear these kinds of provincial changes would help when it comes to a situation like that faced by Gillis, said Greg French, as the attempt at a conviction was done under the Criminal Code of Canada, which is federally regulated.
“The definition of criminal harassment doesn’t go far enough to bring in sexual harassment in the context of what happened here,” he said.
And while a reporter at an off-site location conducting an interview would still be considered at a workplace, the fact that this type of heckling wasn’t a routine occurrence is an issue, said Greg French.
“If (Gillis) had been sent, time and time again, to a particular worksite, where she was harassed over time, there’s a reasonable basis NTV didn’t do enough to protect her and provide a safe work environment and all those things. But the fact that she’s out as the one-off and some idiot runs by and yells this at her, I’m not sure… there’s much (the employer) could have done. So I’m not sure any provincial legislative change (is) going to impact that at all.”
If, however, Gillis or anyone else was going to the office or a regular worksite and was getting picked on every day, with the employer not doing anything, “certainly having some of those provincial laws on the books, where the employer has an obligation to provide training programs to employees and doing investigations, and all those things, and if they didn’t do that, then Heather or the employee certainly would have a good claim against the employer,” he said.
More than policies
But underneath the law, there needs to be a clear system and process to have respectful workplaces, according to Bennett.
“Women have the right to feel safe and (not be) victims of bullying and intimidation, and there needs to be a clear process and protection for them so they can bring forward concerns and questions,” she said.
“I also think there should be training about what’s acceptable and not acceptable, and we don’t assume that people in the workplace understand these rules unless we tell them.”
It’s not just a matter of having the policies, according to Ross.
“It’s not just words on paper, it’s got to be about training, the processes in place to address the issue, and it’s got to be socialized amongst the people that it applies to. And to know that if you do call somebody on it, they have your back, it’s not going to come back to bite you.”
‘Strengthened and modernized’
Just days after Cathy Bennett’s announcement, the Newfoundland and Labrador government announced a “newly strengthened and modernized” Harassment Free Workplace Policy for departmental government employees, in effect as of June 1, 2018.
The policy is meant to increase accountability for all employees, and includes an updated definition of sexual harassment to encompass gender-based harassment. The government is also putting in place a “harassment-free workplace manager” dedicated to managing all aspects of the policy and its procedures, including the co-ordination of harassment investigations.
Key elements of the policy include:
- an employee awareness program and mandatory training focused on prevention for all employees under the policy
- a 90-day timeline for all harassment investigations
- a “single-access” entry point for complaints
- communication checkpoints for both complainants and respondents to provide regular updates as a complaint progresses through to resolution
- when requested by a complainant, a complaint shall be automatically subject to a formal investigation.