Stephen Hammond's
Tip #1 — SEXUAL HARASSMENT: GETTING WITH THE PROGRAM
The #MeToo movement is a movement against sexual harassment and sexual assault which started in 2006, but came to great prominence after an article appeared on October 5, 2017 in the New York Times exposing the decades of allegations of sexual harassment against Hollywood movie mogul Harvey Weinstein. In just the year which followed that article, I believe there has been more written, discussed, investigated and reported about sexual harassment, than in all the decades since the term’s origins. This is a very good thing as it’s exposing a dark and dangerous part of behaviour that is irritating at the least, and devastating at the most, predominantly against women in the workplace. But let’s step back a little to discuss the origins of sexual harassment in Canada…
In 1989, then-Chief Justice Brian Dixon of the Supreme Court of Canada, in a unanimous decision, said "sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is...an abuse of power... [that] attacks the dignity and self-respect of the victim both as an employee and as a human being."
Standing the test of time, that decision serves to define sexual harassment in Canada. To prove sexual harassment, a person needs to show they have endured unwelcome sexual attention and that it had detrimental or negative consequences. While the consequences can be the classic, "You show me some sexual attention and I'll let you keep your job," they don't have to go that far. A person who endures provocative pictures sent by email or text, or sexual jokes told in the lunchroom, is often a person being subjected to sexual harassment. This is often referred to as a tainted, poisoned or hostile work environment.
Since the courts have ruled that sexual harassment is a form of sex discrimination, treating women negatively while treating men positively can constitute sexual harassment. In other words, if snide or rude comments are made to women but not to men, and they negatively impact the women's workplace comfort level, this is sexual harassment. The reverse is also true if men are the predominant targets.
I’ve become friends with one of the two women who brought the complaint which led to the Supreme Court decision. Dianna Janzen told me of the immense pressures she and her colleague faced to not rock the boat. After all these years, and with so much education about sexual harassment, unfortunately there are still great pressures NOT to speak up about sexual harassment with fears of retribution. The #MeToo movement has helped to expose a lot, but it’s up to each person and supervisor to ensure every person refrain from sexual harassment, and when it does happen, that the behaviour is stopped immediately. I find it odd just saying that more work has to be done after all these years of talking about it…but it does.
SUPERVISORY SUGGESTIONS:
Continue to educate – as it’s needed. While we’ve had more education on this subject than people may like, it’s worth repeating. One person can handle various jokes, gestures, facial expressions and written words as innocent. However, another person can take these things very different. It’s best to discuss what’s acceptable and what’s not.
Tip #2 — CONSIDER ALL KINDS OF HUMAN RIGHTS HARASSMENT
Since the courts have ruled that sexual harassment is a form of discrimination based on sex (or gender), they have continued to interpret harassment to include other protected grounds of discrimination covered under human rights legislation. What other types? Depending on the provincial, territorial or federal human rights legislation, your list comes from a number of the protected grounds noted below:
Age - Physical disability - Ancestry - Sex - Criminal conviction - Political belief - Race - Aboriginal origin - Marital status - Gender - Social condition - Social disadvantage - Family status - Colour - Sexual orientation - Gender orientation - Gender identity - Gender expression - Language - Creed - Mental disability - Citizenship - Religion - Source of income - Civil status - Ethnicity - Linguistic background - Nationality - Pregnancy - Irrational fear of illness or disease - Place of origin
If an employee is being harassed, but that harassment doesn't qualify under the protected grounds of discrimination, the human rights commission will not be able to legally assist that employee. The persons being harassed and their employer will want to deal with the problem somehow, either internally, or by some other form of legislated protection, but it won't be through human rights. Human rights commissions are designed to only take care of issues under their jurisdictions - not all problems that ail us.
If a provincial, territorial or federal commission does not offer all the protected grounds, be aware that a person can argue a new case to forge a new ground. Years ago, Delwin Vriend took his case of being fired from his job in Alberta for being gay all the way to the Supreme Court of Canada. Since sexual orientation wasn’t yet a protected ground in Alberta, the Supreme Court of Canada "read in" that protection. Eventually Alberta and every outstanding province deliberately put in such protections.
Of course, in recent years many Canadian jurisdictions have added “gender identity” and “gender expression” as protected grounds. And as I write this (so apologies if this is slightly out of date), the Manitoba legislature is considering adding weight as a protected ground. You’ll find such protection in some US states and BC contemplated it years ago (and dropped it when businesses went crazy), but so far weight or appearance are not protected grounds in Canada.
I can’t predict if other forms of protection will be added to our human rights legislation, but we shouldn’t assume there won’t be new future protections.
If I were in charge of a workplace, I wouldn't lose sleep over whether an employee might end up influencing the Supreme Court to change laws, but I would make sure employees don't feel they have to go elsewhere to resolve internal matters. Just because harassment based on hair loss is not protected under human rights law doesn't mean you should allow one employee to call another employee "cue-ball."
SUPERVISORY SUGGESTIONS:
Be open – just to be sure. If you want to roll your eyes when someone says their rights have been violated, or they feel discriminated against, when it seems to you that it has nothing to do with rights, take a deep breath and ask for more information. It could be that there’s something to it, or it’s just a way to express a problem. When you ask for clarification, you’ll find out if it’s something of great concern or not.
Be wise – while being open. Just because a person is crying foul, doesn’t mean there’s anything you can or should do. While it may be odd coming from me, I do find that a few people will claim great injustices, when there are none. It could be that they don’t like the work they are doing or the chewing out they rightfully received for something every inappropriate. Sometimes supervisors are afraid to call employees on bad behaviour because the supervisor might find they are now the subject of concern or an investigation. Do the right thing. Ask questions. Treat people as they should be treated – positively when they do well and correcting them when they need it.
Whatever works – is good advice. If you know enough about your policies and enough about even the basics of human rights protections, then use your leadership style to figure out the best approach if someone’s rights are violated. It could be a simple conversation or it could involve getting your supervisor or HR involved. Follow protocol for sure, and use the approach that gets an issue resolved.
These are TIPS 1 & 2 of 26 BI-WEEKLY TIPS for managers and supervisors.
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