Proceedings of the Subcommittee on
Issue No. 1 - Evidence - June 12, 2018
OTTAWA, Tuesday, June 12, 2018
The Subcommittee on Human Resources met this day at 5:52 p.m. to continue its consideration of financial and administrative matters, pursuant to rule 12-7(1) (Topic: Review of the Senate’s Harassment Policy).
Senator Raymonde Saint-Germain (Chair) in the chair.
The Chair: Honourable senators, welcome to this meeting of the Subcommittee on Human Resources. I must apologize to our guests.
I’m sorry. We had to stay in the chamber in order to vote, so that’s the reason we are late, and we apologize because you had to wait for us.
We are resuming our study of the Senate policy on preventing harassment in the workplace. I would like to welcome the general public.
The subcommittee was created on December 7, 2017, by the Standing Committee on Internal Economy, Budgets and Administration.
I would like to introduce the members of the subcommittee.
Senator Tannas: Scott Tannas from Alberta.
Senator Moncion: Lucie Moncion, from Ontario.
The Chair: I’m Raymonde Saint-Germain, from Quebec, chair of the committee. Our colleague Senator Jaffer is in the chamber but will be here after her amendment on Bill C-66. Our other colleague Senator Tkachuk will be back as soon as possible.
This evening we have two panels of witnesses. First, we will hear Ms. Janice Rubin and Mr. Christopher Rootham, labour law specialists. Afterwards we will continue with Ms. Sandy Hershcovis, Associate Professor and Area Chair, Organisational Behaviour and Human Resources, Haskayne School of Business, University of Calgary.
Without further delay, I will introduce Ms. Janice Rubin, a partner in the Rubin Thomlinson firm, and Mr. Christopher Rootham, a lawyer from the Nelligan O’Brien Payne firm.
Do you have an agreement regarding who will begin, Ms. Rubin?
Janice Rubin, Partner, Rubin Thomlinson LLP: I’m happy to go first. Thank you for that, and thank you for inviting us to attend today. With me is my colleague Michelle Bird and our summer intern, Simon McKenzie, who is here as an observer. We will answer any questions you may have.
Our comments here today are offered from the vantage point of a law firm knee-deep in the issue of workplace harassment. We are not academics. We are practitioners. Nor have we conducted an exhaustive legal analysis of the current policy.
By way of background, we conduct investigations, assessments and training across the country, and our work takes us into every type of workplace imaginable. We conduct many workplace investigations and assessments each year. I think this year it may be into the hundreds.
So, by way of an introduction, by way of a preliminary contribution to the work that you do, I would like to share three ideas with you.
First, while it is certainly important to have a strong, clear and comprehensive policy, and I say this with the utmost respect to senators, an organization’s efforts to deal with workplace harassment cannot simply be a round of wordsmithing and you’re done. Rather, from our perspective as practitioners in this area, emphasis must be placed on the program that gives the policy life. Your program would need to appreciate the context in which it operates by recognizing both the capital “P” political issues and power imbalances in your workplace, as well as small p ones, because yours is a political environment.
Our view is that a program must be bespoke for each workplace, but some generic things to consider as part of a program would be these: First, make sure that behavioural standards are communicated to everyone regularly and that people receive meaningful training. Second, ensure that people are accountable for breaches. If an employer condones bad behaviour, efforts to deal with workplace harassment will be viewed as inauthentic and shallow. Third, leaders especially should walk the talk. Fourth, make workplace behaviour a priority, not just an afterthought. Fifth, have clear reporting mechanisms and options to report — consider for example a confidential 1-800 line. Finally, involve bystanders, giving them more of a role to play. You’ll see in our written submission to you that we talk a little about bystanders, and we can tell you more about our views about bystanders in the question portion.
Our second idea is recognizing the importance of investigations as a way of dealing with complaints and incidents of harassment. These investigations must be fair, thorough, impartial and conducted by people who know what they are doing. The word “competent,” I think, is what you see in the federal legislation.
Investigators, whether they are internal or external, must have substantive knowledge of workplace harassment. This is an area that is full of nuances. It is often counterintuitive, and great harm can be brought to an organization by an investigator who doesn’t have substantive knowledge.
It is important to recognize the impact of investigations on the people most affected by them — the parties. That means that as a process, they should be conducted with great sensitivity and great fairness.
The third idea I want to share in my opening, and this, I think, is our most important idea, is that while there is no doubt that an enhanced complaint and investigation method is important, as a firm, as practitioners in this area, we have come to the conclusion that employers are over-reliant on complaints, on what is substantially a reactive mechanism, to deal with workplace harassment.
Employers appear to believe that everything is fine, that is, there is no harassment in their workplaces or their organizations until someone makes a complaint and tells them about it.
This is problematic from a number of aspects. First, it places the burden of monitoring workplace conduct on the complainant, and at great cost to them — things such as professional and personal disruption, stress, loss of privacy and potential for reprisal. On the issue of reprisal, I will say the data are not good. Complainants are at great risk for reprisal after they file their complaints.
Second, we know that workplace harassment largely goes unreported in organizations. The latest statistics from an Angus Reid Institute survey from a few months ago show that while approximately half of Canadian women experience sexual harassment at some point in their working lives, only a quarter ever report it. That means that three quarters of sexual harassment goes underground. In our efforts to deal with workplace harassment as a societal issue, we need to keep this fact front and centre. We are only going to officially hear about a fraction of what is going on in our workplaces.
If the Senate, like other employers, is serious about dealing with workplace harassment, which — and I say this with respect — undoubtedly occurs here, too, as in every other Canadian institution, it’s going to have to do more than wait for complaints. If you really want to know what is going on, you’re going to have to ask your employees in a process that is both confidential and anonymous so that they will feel safe and empowered to speak.
This is the assessment work we do. We go in as third-party neutrals, conduct surveys and conduct interviews to see what is going on, and then report back to the institutions that retain us to tell them what we have learned. Then those organizations can use the data to fashion a more exact strategy to deal with harassment.
The Senate might consider using the time between now and when Bill C-65 comes into effect to consult, not only with external experts, but gather information from your own employees, the internal experts.
With that introduction, I will pass it over to members of the committee to ask any questions, unless you would like to hear from Mr. Rootham next.
The Chair: We will hear from Mr. Rootham. Just before that, I’m glad to announce that Senator Tkachuk from Saskatchewan is now here. Also, my apologies to Ms. Michelle Bird, a member of the panel. I’m pleased to welcome you as well.
Mr. Rootham, please go ahead.
Christopher Rootham, Lawyer, Nelligan O’Brien Payne LLP: Thank you very much. I will be as brief as I can be. I want to reserve as much time as possible for questions.
I want to thank the subcommittee for inviting me to speak on the important workplace issue that is the Senate’s harassment policy.
I’ll make six points briefly about the policy. First, one of the things I was asked to speak about is the definition of “harassment,” or what is contained in the term “harassment.” I want to make it clear that harassment is an elusive term to define. It is important to both define harassment broadly enough to capture all forms of abusive behaviour and, at the same time, make the definition narrow enough that it does not trivialize the term and does not capture behaviour that is innocuous or innocent in a way that trivializes what is an important workplace issue. There is no single right answer to the definition of “harassment.” I’m not going to propose one to you because of that.
Second, and related, the current Senate policy includes a complaint made in bad faith as itself a form of harassment. This is problematic, in my experience, in two ways. First, including that a bad faith complaint is itself a form of harassment does have a chilling effect on complaints. Legitimate complainants are concerned about being perceived as acting in bad faith, and complainants are reluctant, or more reluctant, to come forward if that is contained in the term “harassment.”
It also unnecessarily complicates the investigation process. In my experience, it is almost inevitable as a response to a harassment complaint to cross-complain — to say that a complaint was made in bad faith and to therefore investigate that cross-complaint too. It lengthens and complicates the complaint process, and it makes it more difficult to get to the root cause of what is really going on in the workplace.
The third point I want to make is about enforcement. Conceptually, in my view, you can usefully divide Senate workers into three categories. There are unionized PESRA workers, there are non-union PESRA workers, and then there are workers who are employed directly by individual senators who are not captured by PESRA.
Unionized PESRA workers do have relatively robust enforcement mechanisms because their collective agreements inevitably contain provisions prohibiting harassment. They can grieve those and pursue that grievance to adjudication using their bargaining agent.
Non-union PESRA workers, which are managerial-excluded or confidential labour relations excluded under PESRA, do not have the same opportunities. Harassment is not a condition of employment that can be referred to adjudication. It is grieved up the line to their managers and to senior management, and there it ends. It’s great to have a policy, and it’s great to apply the policy, but for that category of workers, enforcement is problematic.
There are ways we can do it. I have acted for a number of non-union PESRA employees before. We can enforce a policy like this, but it’s challenging and difficult.
For the third category, it’s more than challenging and difficult; it’s borderline impossible. Direct employees of individual senators do not have protected statutory rights under PESRA to enforce, grieve and challenge decisions. That’s something that is missing from the overall statutory scheme. As an aside, I note it’s something that is still missing under Bill C-65. Individual employers in the House of Commons, members of Parliament, are caught under the definition of “employer” under Bill C-65, but individual senators are still not. So I note that a policy is only as good as its enforcement mechanisms. Enforcement mechanisms might require legislative change this body would want to consider.
Fourth, the policy as it stands requires that all employees, or everyone subject to the policy, be informed of the policy. That’s not sufficient. The literature, the research and my own personal experience is that a policy that is simply brought to an employee’s attention once is easily forgotten about and becomes just something that is in the background, along with hundreds of other HR policies that exist for Senate employees.
If we’re serious about dealing with harassment — and I think we are — it’s important that employees are regularly reminded about harassment, are regularly required to sign off or to review the policy, that there is regular training, that there is regular review of the workforce, and so on. Simply requiring employees to be aware of the policy is insufficient. It should be front and centre.
Fifth, the policy as it’s drafted is owned by HR, so to speak. The director of human resources is responsible for implementing the policy for the bulk of Senate employees, responsible for organizing the investigations and also responsible for ensuring confidentiality. This puts HR and employees in a difficult spot. It’s difficult for complaints to remain truly confidential if the director of HR is responsible for them, because the director of HR is ultimately also responsible for discipline and for performance management. It’s hard to forget about the existence of a pre-existing harassment complaint when you are dealing with what could be unrelated or maybe related discipline or performance management issues.
I would suggest this committee consider ways to get this program out of HR. Either create a stand-alone ombudsperson responsible for workplace wellness, including harassment, or, alternatively, there is more than one PESRA employer. There are the Senate, the House of Commons, the Library of Parliament and so on. If it must reside in HR, think about cross-referring; think about having, for example, the director of HR for the Library of Parliament responsible for the Senate. Rotate it around that way. It will create a greater confidentiality wall for these complaints.
Sixth and finally, I’m going to repeat what Ms. Rubin said: A policy is good on its face, but workplace harassment starts with management culture. That strong management culture is necessary to prevent harassment in the workplace, and if harassment in the workplace does occur, to deal with it quickly and appropriately, to deal with it fairly for everyone involved — complainants, respondents — but it starts with management culture.
We can have a great policy, but if management is not going to enforce it, and if management is not going to walk the walk as well as talk the talk, no policy will be effective in preventing and addressing workplace harassment. Those are the six points I wanted to make briefly.
The Chair: Thank you, Mr. Rootham and Ms. Rubin. Those were interesting presentations.
Senator Tkachuk: Two issues. You touched on both of them — the definition. I’m not sure if you know when you see it or hear it, but, nonetheless, it is pretty hard to define. The second point is that when you’re dealing with a small organization like the Senate, which we are, everyone knows each other. All the managers know each other. They have meetings; they are friends; they go to each other’s parties; they visit. It’s not as if we have 2,000 people; it’s 400. It is more difficult for one manager, when he gets a visit from one of his employees and then finds out that person has reported him to another person or someone in the organization about a harassment claim.
That’s why I buy the idea that it should be outside, especially in a small organization like the Senate. I don’t know how your experience has been with small organizations and how they deal with it.
Ms. Rubin: Not all of our cases, but most of them, arise in Ontario where we have Bill 132, which changed the Occupational Health and Safety Act a couple of years ago and clarified that employers are required by statute to conduct investigations when they receive a workplace harassment complaint or when they become aware of an incident of workplace harassment. It was not just the official complaint written and signed with a bow but an awareness of harassment.
That provision applies to large and small employers. In our experience, the clarity that that brought about for employers in Ontario was very helpful because it meant that they knew they had to do something when they had this information. They were required to conduct an investigation that was appropriate in the circumstances. For some organizations, “appropriate in the circumstances” might be an internal investigator, an investigation done by somebody skillful.
But in other workplaces, perhaps small, that are highly friendly, highly personal, for those organizations, and depending on the severity of the complaint, often the decision is to refer those investigations outside.
In our regime in Ontario, there is a certain flexibility, if you like, to figure out what is appropriate in the circumstances — so perhaps that flexibility of approach, internal — but I agree with Mr. Rootham’s comments about who internally. But if you have someone who is objective, unbiased and competent internally, for some complaints, that’s perhaps the way to go. In other situations, you would need to go external, it seems to me.
Mr. Rootham: To address the point in a little different way, part of the issue with a smaller organization like the Senate is that you’re going to have a number of employees who come from the federal public service. There is going to be an expectation gap in terms of what is available to deal with harassment complaints in a smaller organization like the Senate versus the federal public service. If there is a complaint against a manager, you can’t transfer the complainant all the time. Your organization isn’t always big enough to do that.
You can’t have the Cadillac year-and-a-half-long investigation into harassment done by someone with 45 years of experience in the field who is willing to conduct 23 days of interviews with people. Different organizations will come with different expectations and different time frames that you should be working within to deal with harassment complaints.
In my experience in dealing with smaller organizations, it is speed. Once you find out about the complaint, investigate the thing; get an investigator and investigation lined up. There is nothing preventing investigations to be done in a matter of weeks and not months or years, unlike what often happens, in my experience, in the rest of the federal public sector. That’s one way that the Senate, as a smaller organization, can address what I think some of the issues are that you are hinting at in your question.
Ms. Rubin: It is important to recognize where you are. The smallness might be a factor, and the fact that people have collegial relationships, and it sounds like people are into everyone else’s business here. Perhaps that is not the right way to put it, but I think that this particular context needs to inform your program. And the smallness and what it feels like to work here may be a particular factor for under-reporting; right? Everyone is going to find out.
Senator Tkachuk: Yes.
Ms. Rubin: If I come forward with a complaint against so-and-so, everyone finds out; I’m going to suffer reprisals. The smallness needs to be thought through as part of the program that gives your policy life.
Senator Tkachuk: The other issue — let’s say it’s against a senator — is what happens to that employee? No matter what happens, whether it was found for the employee or for the employer, that relationship is finished; so that person has to go somewhere. Well, there is really nowhere to go. This is a small place. If there is no job in a Senate office, you’re done like dinner. That’s a problem.
The Chair: Yes, we have to address this.
Senator Tannas: We have received advice from a number of sources. I think, in our minds, a lot of us are thinking about outside. Can you confirm that there are end-to-end service providers that could provide us with a 1-800 counselling service on a no-names basis, then move, if necessary, to investigation and ultimately a finding that then we could take internally for consequences? And then do the proactive surveying that you were talking about to make sure that it’s not staying underground, that we actually are moving the needle on eliminating things. Is there an organization that would do that for us?
Ms. Rubin: At the risk of sounding like a commercial, Senator Tannas, that’s what we do. We decided to shift the primary focus of our firm from traditional employment law to this work because we detected a need in many organizations across the country for exactly that. One, to be able to say that in this situation we are referring this investigation to an external expert, and two, to bring a level of experience and expertise to the issue that isn’t always there.
We ourselves do not do the 1-800 program, but that is an easy add-on. There are lots of providers who do that. We are not the exclusive law firm that does this. Lots of law firms do this. Christopher’s law firm may do it, too. We may be unique in that this is the only work that we do at this level and volume.
The Chair: First we have to go to an open competition when we have to hire professional services. It is important to state that.
We’ll have to go for a vote in the chamber. I would like to ask you to be as concise as possible because I wouldn’t like you to be obliged to wait for us once again. Sorry about that.
Mr. Rootham: Yes, there are service providers that can do that. Think about whether you might want two service providers, one to do the wall-to-wall investigation, findings, maybe the survey; and the 1-800 you want to keep separate from the actual investigators. If it’s one organization, maybe two wings within that organization doing both sides of the job.
Senator Tannas: So the speed with which you conduct an investigation and get to a finding, and us referring to a group of lawyers, does that not cause the accused to lawyer up and the whole thing to just pancake in terms of timing and speed, or how does that work?
Mr. Rootham: Lawyers can take meetings quickly.
Senator Tannas: What if the other side doesn’t want to cooperate? This is a live example of something that happened with us.
Mr. Rootham: Yes, of course. At the risk of coming across in the abstract, the rules of procedural fairness, in any case, are variable and flexible depending upon the context, and, sometimes, the rules of procedural fairness in a case do not permit endless adjournments. An investigator can say, “The investigation is going to take place within this time frame. I am available on these four days. Get yourself available. Your right to counsel is outweighed by the need to process this within a reasonable time frame.”
Senator Tannas: Great.
Mr. Rootham: They can do that.
Senator Tannas: Thank you.
The Chair: For your information, the vote will take place at 6:48 p.m., which leaves us a little time.
Senator Moncion: You were speaking of help that staff could have access to, and we have something that is quicker when an event occurs. I think we have that access through Morneau Shepell. We have a contract with them. I think you’re allowed to call them on an issue like this. It’s a confidential answer, and you get counselling. We’d have to check within the contract that we have with them to see if that is available.
One comment that you made I’m a little bit surprised by. Complaints made in bad faith — there is some kind of language in our policy that says that. How do we deal with complaints that are made in bad faith? I understand that we’re going to remove it from the policy, but how do we deal with those?
Mr. Rootham: You could make it clear in the policy that it is not a form of reprisal to take steps to address a complaint that was made in bad faith. So it’s not — making a complaint in bad faith is not, in itself, a form of harassment. It’s not, in itself, going to result in someone else filing a harassment complaint; but, if an employee is making a complaint in bad faith, an employer is still well within their rights to deal with that through disciplinary, through performance management, through — it can be a mental health issue — requesting better medical information about what is really going on with an employee. There are a myriad of ways an employer can deal with bad-faith harassment complaints, without characterizing it as harassment and without dealing with it in the harassment policy itself.
Ms. Rubin: If I could add to that, certainly, from our experience as practitioners, it is a very small number of complaints that actually are brought in bad faith. There can be complaints that are not substantiated because a person is not credible, a person is not reliable, but that’s different than bad faith. The bar of bad faith, legally, is actually quite high. So I think it would be very rare to actually encounter that in the workplace, not impossible, but very rare. What does happen, for some employers — and, again, stressing the need to have competent investigators and a very robust understanding of workplace harassment — is that the idea of an unsubstantiated complaint and a complaint in bad faith gets conflated: Your complaint is not substantiated, so automatically it’s in bad faith. That’s just not the case.
The Chair: Senator Moncion, do you have another question?
Senator Moncion: No, not for the time being.
The Chair: I will allow myself a question before the second round. It is addressed to Mr. Rootham.
You referred to the necessity for the Senate to have some changes in the law, especially with regard to the staffers of senators. Would you tell us more about that?
Mr. Rootham: As you’re aware, PESRA protects employees of the Senate. But there are still what I’ll call “individual staffers,” who work directly with a senator. They are not employees of the Senate. They are employees of individual senators. As the law is currently written, there is zero statutory protection for these employees outside of, arguably, the Canadian Human Rights Act. But that deals with certain forms of harassment. It does not deal with abuse of authority harassment or just behaviour that is not motivated by sex or race or the other prohibited grounds in the Canadian Human Rights Act.
I should pause here to say that this is also true for ministerial staffers. It’s also true for staffers of individual members of Parliament in the House of Commons. Bill C-65 goes some way to closing that gap by including individual members of the House of Commons in the definition of “employer” for the purposes of the harassment or the occupational health and safety provisions in PESRA, so that the staffers of individual members of Parliament have a forum for complaint if and when Bill C-65 becomes law. But individual senators are still not included in the definition of “employer.” So that’s one possible fix to it.
Other possible fixes would probably be well beyond the scope of what I’m here to testify about and would involve complicated issues of balancing parliamentary privilege against common law and statutory rights of individual staffers. I’m happy to get into it for a few hours, but let’s focus on what we’re here to focus on. That is one thought, though.
The Chair: Ms. Rubin you referred to an ombudsperson. Can this person be within the Senate, or would it be better, given the small size of the institution, that this person be an outsider?
Ms. Rubin: I think it was actually Mr. Rootham who referred to the ombudsperson. But the way some organizations do this is that they have an internal person, but, through contract, that internal person is given certain independence to ensure that there are no reprisals against them for rendering decisions that perhaps are unpopular or are problematic for individual members within the organization. So I think that if you were to have an internal person, you would need some protections around that.
In the university sector in Ontario, post-Bill 132, most universities have a dedicated harassment officer who deals with, often, a lot of the intake of harassment and violence complaints, sometimes investigates them, sometimes sends them outside. So I think there is no one size for every organization. I think it would depend.
The Chair: Mr. Rootham, do you want to add on this ombudsman question?
Mr. Rootham: Just to say that in the university sector, in my experience, the individual responsible is not also the person responsible for human resources within the faculty. They split the roles.
The Chair: You made it very clear, both of you. Thank you.
Senator Moncion: For employees, who, let’s say, put in a complaint, what is the protection they have for their job? Because it’s nowhere in the policy.
Mr. Rootham: The policy does prohibit reprisals as a result, and a reprisal would include termination of employment.
Senator Moncion: I understand. But how do you —
Mr. Rootham: How do you enforce it?
Senator Moncion: Yes.
Mr. Rootham: If you’re PESRA unionized, you enforce it through grievance adjudication. If it’s termination of employment, PESRA non-union can also grieve and go to adjudication on it. For senatorial staffers, nothing. There’s nothing.
Senator Moncion: How do we protect them? We don’t?
Mr. Rootham: You find some method, either internally find a way to guarantee or protect employment, or protect them financially until they can find reasonable alternative employment.
The Chair: Are there any other questions?
Ms. Rubin, Mr. Rootham and Ms. Bird, thank you so much for your presentations. We will be in touch. We have received very value-added information from all of you. Please do not hesitate if, after these hearings, you want to add something either in writing or verbally. Please get in touch with us and we’ll be very pleased to hear from you again.
My apologies to Professor Hershcovis. We will have to suspend and, immediately after the vote, we will be back in order to hear from you. Thank you.
I declare the meeting suspended until the end of the vote in the Senate.
(The committee suspended.)
(The committee resumed.)
The Chair: Honourable senators, may I introduce our second expert of the day. From the University of Calgary, we welcome Sandy Hershcovis, Associate Professor and Area Chair, Organisational Behaviour and Human Resources. The professor very kindly provided us with a written list of specific suggestions. I thank you, that is very much appreciated. Without further ado, I now give you the floor.
Sandy Hershcovis, Associate Professor and Area Chair, Organizational Behaviour and Human Resources, University of Calgary: Good evening. It’s an honour to be here today to discuss the Senate’s policy on the prevention and resolution of harassment in the workplace.
I’ve specialized in the scientific study of workplace harassment for the last 15 years. In my comments, I’ll touch on three main issues: definition, the challenges around dealing with workplace harassment, and prevention. For the sake of clarity, throughout these comments, I refer to alleged harassers as perpetrators and those who report harassment as victims.
There are many definitions of workplace harassment, and scholars often disagree on these definitions. Appended to my verbal comments are examples of definitions of sexual and non-sexual harassment. I’ve asked Mr. Charbonneau to distribute this to the committee.
I want to highlight three key components of what I consider to be a good definition.
First, harassment, both in its sexual and non-sexual forms, does not always occur within the confines of organizational boundaries. Cyberharassment has become increasingly problematic as employees harass co-workers through various online channels, including email, social media and text messaging. Any definition of harassment should include behaviours that may extend beyond organizational time and space boundaries.
Second, I encourage the committee to be broad in its definition. Sometimes policy-makers fear broad definitions because they think it will encourage people to over-report, but as I’ll explain in a few moments, victims are far more likely to under-report than over-report harassment. A broad definition sends a strong message that the organization will not tolerate harassment of any kind.
Third, I recommend that you explicitly define “gender harassment,” which is by far the most prevalent form of sexual harassment. Gender harassment consists of demeaning or hostile gender-related comments, often from more powerful toward less powerful employees. They range in severity from obscene gestures and sexual insults to seemingly less severe comments and remarks that may even seem benevolent. For example, referring to a female colleague as “sweetie” or “honey” serves to infantilize them.
Commenting on someone’s physical or aesthetic appearance, even in jest, can be degrading and may undermine the victim’s confidence. These are put-downs rather than come-ons, and many people are not aware that these behaviours are degrading and insulting. A large body of research shows that gender harassment has significant effects on an employee’s psychological well-being, job satisfaction and turnover.
Next, I’ll talk briefly about the key challenges I see in responding to sexual harassment and harassment generally. First, victims are afraid to speak up and with good reason. They’re often not believed or made to feel like it’s their fault. They fear retaliation. They fear nothing will change. They might also fear getting someone into trouble.
Second, when victims do speak up, proving that harassment has occurred can be very difficult. Often, perpetrators are cleared of any wrongdoing, and that may not be because perpetrators are innocent. It is more likely the victim couldn’t prove the harassment. The victim is then left in a situation where they have to face the accused and continue to work with and, often, for them.
Third, perpetrators regularly retaliate against victims who voice harassment concerns.
In updating your current harassment policy, I recommend the committee consider what this policy can do to make it easier for victims and witnesses to report harassment safely and to ensure that you protect victims and witnesses from retaliation. Since victims are in a vulnerable position, I think witnesses are a key resource in the investigation process.
I have a few recommendations. First, victims and witnesses should be able to voice concerns anonymously. To the extent possible, the investigation process should protect victim and witness identity.
Second, currently the government and opposition whips handle reports of harassment against senators and Senate staff, so victims are required to report harassment from senators to other powerful senators. This is likely to be a huge deterrent to reporting. Reports of harassment are best addressed to an impartial third party, such as an ombudsman.
In terms of prevention, the first step to prevention is having a strong policy, which this committee has already undertaken. Of course, to have teeth, there need to be real consequences for perpetrators. Having a policy with no consequences isn’t much of a deterrent for bad behaviour. Since powerful people are often the harassers, this presents a challenge when the perpetrator is a senator.
In other organizations, people can be fired for engaging in harassment. In the Senate, the least powerful people, those most likely to be victims, can be fired, but the most powerful people and those who are more likely to engage in harassment are much harder to fire. Although senators can be expelled, to my knowledge the Senate has never voted to expel a senator. It’s difficult to have an effective policy when there are no serious repercussions. Such a system is also very likely to discourage reporting.
I’m aware that the Senate consists of more than just senators, but senators are the most powerful members of this organization, so I urge this committee to identify substantive consequences of harassment for senators and other perpetrators and to ensure that they are clearly stated in the policy.
A second way to prevent harassment is to eliminate the contextual conditions that cause harassment. In particular, highly stressful environments create a breeding ground for non-sexual harassing behaviours. When people are stressed, they become reactive and may lash out at colleagues. Ensuring the work environment is as stress-free as possible and providing opportunities for employees to deal with stress can help with prevention.
Another way to prevent harassment is to involve all employees in the policy revision process. This engages everyone in the process of thinking about harassment and the process for dealing with it and helps to communicate to employees that the Senate takes harassment seriously. You might consider conducting an anonymous survey to assess the extent of the problem. I also suggest mandatory training for all employees to ensure everyone understands the nature of harassment, how to identify it and how to respond when problems arise.
Managers must be held accountable for acting to stop harassment. Managers often turn a blind eye because it’s easier than taking action. Failure to act has serious consequences for victims and the organizational culture. It’s also important to offer multiple ways for victims to report harassment early before it turns into a formal complaint. Employees should be able to report their experience to someone they perceive to be safe and on their side. This is often not their boss or human resources management.
I have appended several specific suggestions for ways to strengthen the current policy for the committee’s consideration. Thank you for inviting me to comment. I welcome any questions.
The Chair: Thank you very much.
Senator Tkachuk: Just so it would be helpful for discussion purposes, we have had senators who have been punished except what happened is they resigned before the Senate had time to act. They resign to protect their pensions, usually. In my experience, I’ve been here 23 years, and four or maybe five senators have left before action could be taken. If action is taken, it’s very public, so it is a tool and one that we don’t use with impunity, only because partisan problems can get in the way of it and people may be expelled for the wrong reasons.
Second, we have suspended senators, actually, three of them. That was a pretty difficult ordeal for them, I’m sure, and it was for us. It was a two-year suspension. So there are vehicles for the Senate to be able to adjust, and if there are problems they’re able to punish, that’s for sure. Of course, we’re public figures, which makes it even more difficult.
I don’t have any questions.
The Chair: Thank you for the clarification, senator. I appreciate that. You don’t have any further questions for the time being?
Senator Tkachuk: No, I think I’ll let Senator Moncion ask some.
Senator Moncion: Could you talk about bullying and where it fits into this policy, talking about bullying on social media, just to make the connections? You brought up social media and I think we might have some situations here.
Ms. Hershcovis: Right. Bullying is a persistent form of psychological and sometimes physical harassment that happens over a sustained period of time, so it differs from other forms of harassment in that it is sustained. It usually involves different types of behaviours. It’s usually targeted by one person towards one or many employees, depending on the situation, and it has significant negative effects on employees in the same way that other forms of harassment do.
Online or cyberbullying would be the same except that it can occur over email, social media and over the phone. It can cross boundaries from the workspace into an employee’s home life, if they’re opening their email, for example, in the evenings or on weekends and they’re experiencing this harassment off the work premises.
Senator Moncion: How do you integrate that into a harassment policy?
Ms. Hershcovis: I think just by including in the definition the idea that these behaviours can cross time and space boundaries, ensuring employees are aware they can report that type of behaviour and that it falls within the definition of the Senate’s policy.
Senator Moncion: I will go back to what you were saying that there were four or five senators who left before any complaints were brought forward against them. How protected are they, even if they’re gone?
Ms. Hershcovis: Protected in what way?
Senator Moncion: Well, they could still have complaints of harassment brought against them even if they’re not senators anymore. Or does it stop when they leave?
Ms. Hershcovis: In terms of the Senate’s ability to punish or do anything to them, I think it stops when they leave. In terms of whether it’s illegal, I guess the employee would have other recourse, but they wouldn’t necessarily have any recourse to report against this individual, the senator, if the person is gone, would they?
Senator Moncion: Because of the psychological problems that might have occurred, the previous witnesses were talking about not retaliation but cash settlements for these people.
The Chair: Severance pay?
Senator Moncion: They were talking about stress, loss of quality of life and reprisals. You’re saying that once these people are gone, you cannot bring forward a complaint against them because they’re out?
Ms. Hershcovis: Unless there’s something beyond them that’s causing a toxic work environment. I would encourage the organization to follow up with those employees and make sure their mental well-being is intact and they’re being taken care of. In terms of reporting that individual, if the person who caused the problem and was engaging in the behaviour is gone, then I don’t think there’s a need, really, for any further action.
I would reiterate the points made by my colleagues earlier that this needs to go beyond the policy. The policy is a nice first step, but really I think it’s important to conduct a survey to first assess the nature of the problem, how persistent it is, how prevalent it is and what kinds of harassment are happening in the Senate and then identify ways collectively that you can move towards a more positive culture.
You could have workshops with employees, identify the values the Senate would like to have and figure out how to get from the point you identified in your survey, where I’m sure harassment is happening because it happens in every organization, to the point where, presumably, people would like a more positive work environment.
Senator Moncion: In the field that you are part of, can you talk about the code of conduct? How close or how far is the code of conduct, or ethics or whatever, to harassment policies?
Ms. Hershcovis: Usually codes of conduct lay out expectations for behaviour, so civility is usually one aspect of a code of respectful conduct in the workplace that comes with a code of conduct. I would think as part of a good policy the organization should lay out the values it expects people to uphold, such as inclusiveness, civility, respect and so on, which would be components of that broader code of conduct, which also encompasses other types of behaviours and expectations for organizations.
Senator Moncion: So they’re part of policies that an organization would have, so you would have harassment and work safety policy and then a code of conduct?
Ms. Hershcovis: The code of conduct would usually govern a broader set of behaviours within the organization, some of which would be inclusiveness and the values that you uphold.
Senator Moncion: All right. Thank you.
The Chair: For clarification, I want to state that the senators who were suspended were not suspended on issues related to harassment. The senator made the point because he wanted to indicate very accurately that we can sanction a senator, but it was not on these issues.
Senator Tkachuk: I think only one senator has resigned because of that issue. All the rest were other things. What I was trying to say is that the Senate does have the means to punish.
Ms. Hershcovis: Right. I would encourage you to lay that out explicitly in the policy so that people who are looking at reporting, and also people who are looking at the policy and trying to understand what behaviour is inappropriate, can see what the possible consequences are for them.
Senator Moncion: Something out there, but President Trump with the tweets, is he a bully?
Ms. Hershcovis: Yes, absolutely.
Senator Moncion: Is he a harasser?
Ms. Hershcovis: Yes.
Senator Moncion: I see. And he uses Twitter to harass and bully people?
Ms. Hershcovis: Yes.
Senator Moncion: So it’s a powerful tool?
Ms. Hershcovis: Yes, it’s a powerful tool because it can be communicated broadly.
Senator Moncion: What happens when senators use those tools to harass or bully other senators? How do we work around that?
Ms. Hershcovis: Well, I think it needs to be part of this policy and part of the definition.
Senator Tkachuk: I think we’re getting a little off topic here. First of all, she may be really qualified, but I don’t think she’s spoken to President Trump. I don’t think she’s investigated President Trump. I don’t think she’s investigated other senators, so if we’re going to go there, we can go there, but it’s not a pleasant place at this table.
The Chair: And I agree that we should focus on the issues related to our work. I understand that you want to give the example of how far can bullying and harassment go, but perhaps we could focus more on the Senate situation.
Senator Moncion: But if I may, I asked earlier if bullying was part of harassment.
The Chair: Yes, it is.
Senator Moncion: So I’m going further with the information, but the point has been made. Thank you.
Senator Tkachuk: I think harassing people is different from harassing an employee. That’s what I’m getting at.
Senator Moncion: Harassment is harassment, whether it’s an equal or whether —
Senator Tkachuk: You and I have a fight and we may say that’s harassment, but it’s not the same thing as us having a disagreement. We could have a disagreement on Twitter. We could have a disagreement. That’s not harassing. That’s a disagreement. You’re a senator. You’re equal to me. You’re not an underling. I don’t have power over you; you don’t have any power over me. We’re having a discussion.
Ms. Hershcovis: Power is not necessarily part of the definition of harassment. You can have harassment between colleagues. But there is clearly a distinction between a disagreement, which is what you’re having here, and bullying and harassment. That causes harm, and people would agree that it is an unwelcome behaviour.
The Chair: I’m pleased to welcome Senator Mobina Jaffer. Senator Jaffer was on duty in the chamber, and she’s a member of the committee.
Senator Moncion, do you have any other questions for the time being?
Senator Moncion: No.
The Chair: I have two questions. The first one is related to the change of culture of an institution with regard to harassment. Some examples were given that a man, an employer or manager, might say to his secretary or assistant, “Hi, sweetie.” There’s no wrong or bad intention, but it won’t be accepted like it was 15 years or 20 years ago, so this brings me to the change of culture. Do you have any suggestions for us related to this needed change of culture in our institution, as in many other institutions?
Ms. Hershcovis: How to change culture, you mean?
The Chair: What’s the best way to influence the changing of culture?
Ms. Hershcovis: I think it needs to start from the top. It’s crucial that the leader is exhibiting the kind of behaviour expected within an organization. It was mentioned earlier, and I agree about having an initial investigation into the extent of the problem in the first place, understanding the extent of the problem through a survey and through consultation with employees to really get at the root of where the problems are, what kinds of problems you’re experiencing, such as gender harassment, bullying, cyberharassment or something else. First, get a pulse on what the problem is and then have workshops with employees to collectively determine what the organization would like to see, so what employees see. You need buy-in from the bottom up.
It’s important for the leader to exhibit the behaviours you want, but it’s also important for employees to be involved in that change process so that everyone is aware of what the change needs to look like and there’s consensus around that change. I think there very much needs to be a collective process, where people identify values they want to uphold and work towards identifying strategies to achieve those values in that end.
The Chair: My other question is related to what I would call the reconciliation. I believe that any case of harassment should not, depending on what it is, result in two people leaving the Senate or one of the two people leaving the Senate.
What are the best practices in reconciliation between the harasser or alleged harasser and the victim?
Ms. Hershcovis: That’s a very difficult question because there’s not a one-size-fits-all solution. It really is contextual. If the harassment happens and it’s a one-off thing and the victim feels like they can approach the harasser directly and explain how their behaviour has affected them, and making sure they do that in a very respectful way that doesn’t raise defences and so on, then that can be fixed right then. But usually that’s not the way it goes. Usually people are afraid to say anything. They feel bad saying something. They think maybe they’re just having a bad day and then the behaviour persists to a point where it’s a much bigger deal. At that point, I think you’re looking at more of a mediation of some kind, where a third party can come in and help the two parties have a conversation to try to come to a resolution.
Sometimes the victim won’t feel comfortable with that, so it must be victim-driven. If they come to someone with a complaint, then that person should give some sense of what they’re looking for in a resolution. Are they looking to sit down with the person and resolve it? Are they looking for their manager to resolve it for them? You have to identify the way the victim would like to go.
The Chair: Would you recommend that the policy go that far? That is, we would plan for a type of resolution in order to reconcile?
Ms. Hershcovis: I think it would be ideal if you could do that. Certainly it should be an option. I believe your current policy has that sort of informal process embedded within it. Most victims would prefer these things get resolved informally because launching a formal complaint is scary and has all sorts of implications. I think you should include it, yes.
Senator Jaffer: You may have said this, but I didn’t hear it because I was late. Would you say that even between two colleagues there are power relationships and that harassment can exist?
Ms. Hershcovis: Yes.
Senator Jaffer: Even though you think you are equal, you are not?
Ms. Hershcovis: Yes, there are different dimensions of power. Two senators may be equal, two employees may be equal, but there are social forms of power that arise when certain people have more influence in social circles. There is gender-related power that we know is a significant form of power where men often in society seem to be more powerful than women.
Equal is a very hard thing to define. It depends on the context that you are in, who is friends with whom, cronyism, all sorts of things. Yes, definitely. Research has shown that co-worker harassment has significant negative health effects on victims as well as harassment from someone with power.
Senator Jaffer: I’m just trying to understand this. Even with co-workers, it depends on who has the boss’s ear, so who has more influence with the boss. That can also be —
Ms. Hershcovis: Right. A form of power.
Senator Jaffer: We live in a political world here. And we don’t really live here. We are transient; so that causes many other issues. It’s not 365 days you come to the same place. We are here a few days, we are out. We don’t pick up signs.
I’m going to another question on this, and I’ll come back to what I was originally asking you. I’ve been thinking a lot about this. I’ve been here 17 years. What I have heard has made me very guilty because I felt I didn’t hear it. Where was I? I didn’t hear these things. I’m stuck here in this building, and so what I’m asking you — and if you’re not able to explain, I understand — is what signs should we be looking for?
Ms. Hershcovis: That’s a difficult question. The broader issue that you’re getting at is the importance of training everyone — not just managers, but all employees — on the signs to recognize when harassment is occurring. To call out and be willing to call out your colleagues, especially people in positions of power, because it happens so often from someone in a position of power to someone below them.
I’m not saying that you call someone out publicly. You might pull them aside privately and speak to them about it. But in terms of specific signs, it’s very difficult when people aren’t reporting because people can hide harassment. They can do it subtly; they can do it in invisible ways.
I don’t think you need to beat yourself up for not identifying it, but making yourself open so that people are willing to report to you, checking in with your employees to ask them whether there is anything going on. Can you talk to me about the climate among staffers or among other people who are maybe not at your level of power? That can help as well, just checking in and asking your employees.
Senator Jaffer: That’s exactly the problem. I only have two employees. Most people that I work with here are not my employees, and they are the ones who are saying they are harassed. You may not be able to answer this, but if you can reflect on it and perhaps give us an answer, I would appreciate it. The people we work with here are not our employees; so that’s a big challenge. As a senator, you have two employees, but the others you work with. It’s not the same as you would have in a normal workplace.
I’ve been thinking a lot about this since we started this committee. There are many different things in this place that we have to look at. It’s not the normal work relationship. We may work with one clerk once a month, once a week, but it is transient. There are some ways for you to help us. How do we go about setting this up? Because it’s a very different workplace.
Ms. Hershcovis: It is difficult to identify harassment, which is why I suggested some sort of an anonymous survey — in the earlier session, they suggested the same thing — to get a pulse on what is happening and where it’s happening. Once you know that, then you can start to fix it or at least try to fix the culture.
Senator Jaffer: How do you create a safe place?
Ms. Hershcovis: Having an open line of communication, having leaders who exhibit respectful behaviour toward each other and subordinates. Really important to a safe environment is having workplace fairness — so being transparent, communicative, making sure that employees know that you care about their well-being, and they feel like they are comfortable to come to you.
You said in your comments that other employees had commented on harassment, or that they were being harassed but they weren’t your employees?
Senator Jaffer: They are not my employees.
Ms. Hershcovis: How do you know that?
Senator Jaffer: Because of this committee.
Ms. Hershcovis: So you have asked.
Senator Jaffer: I never knew before.
Ms. Hershcovis: So asking is important.
Senator Jaffer: Thank you.
Senator Tkachuk: When you’re talking about employees in an organization, I think anybody who belittles someone, who makes stories up about someone, who does stuff that — we all know, as civilized human beings, what is right and wrong. That would be unacceptable. That would be grounds to fire the person because they can’t be good for the culture of the organization.
It seems to me that if people are using Twitter, they are leaving evidence. They are causing themselves their own problem. With teenagers and schools, that is a very different situation. In an organization, any manager who is worth his salt is going to say this cannot happen here.
Ms. Hershcovis: Right. The problem is it often doesn’t happen. You were saying how people are leaving evidence. That’s true, but only if the victim reports.
Senator Tkachuk: Why wouldn’t the victim report something like that? This is an adult thing. Why would you be afraid?
Ms. Hershcovis: Well, because it may seem like you’re being petty by reporting someone, or it may seem like you’re too sensitive. There are lots of reasons why people don’t report. They will be afraid that they will be retaliated against, that they will lose their jobs.
Senators, as an example, have a permanent position. My understanding is staffers have a very tentative position. So reporting someone for being rude to them over Twitter or Facebook might result in them losing their job in a year when their contract comes up.
There are lots of reasons why people would be afraid to report, which is why it’s very important to take the responsibility for reporting off the victim and put it on people who might witness this sort of thing and see it happening on Twitter and do something about it.
Senator Tkachuk: If people are afraid to report being maligned by a fellow worker in an organization like the Senate, doesn’t that say something about the culture itself of the whole organization, if they are allowed to get away with it and people are afraid to come forward?
Ms. Hershcovis: Absolutely. Yes.
Senator Tkachuk: It wouldn’t be just the one person; it would be the whole bloody works of them.
Ms. Hershcovis: Yes. Harassment often occurs in permissive cultures that allow it to occur. Once again, I hate to repeat myself, but tapping into what is happening, maybe this isn’t a prevalent problem, maybe it is, but finding out and then trying to understand the causes.
Senator Tkachuk: There are cultural changes that happen. Exactly like Senator Saint-Germain said, 40 years ago, using a term like that would be almost normal, and teasing; it wouldn’t be considered harassment.
Now I notice that no one wants to touch each other, which is an abnormal thing for me. You have to train yourself to change the way you behave around other people. That’s a cultural problem only because we’re older, and we’re used to a certain way to do things, and now it’s considered unacceptable behaviour.
Ms. Hershcovis: Right. That just comes down to training and awareness.
Senator Tkachuk: Yes. People don’t know.
The Chair: I want to follow up on Senator Tkachuk’s questions and comments. If it is allowed for co-workers to be bullying each other or harassment between them, isn’t there a responsibility of their managers who wouldn’t have been proactive enough to try to prevent, to tackle the issue? Would you suggest that we create, not only in the policy, but in the ethics code of managers and staffers, responsibilities and obligations related to that?
Ms. Hershcovis: Absolutely. It’s the responsibility of managers, but only when you see it. You heard one of the senators say that they had not seen it. It’s a very common thing, though, for managers to see a conflict or a mistreatment and to look the other way because it’s much easier to not do anything than it is to address it. It can be intimidating. It can be onerous.
No one likes conflict, and it’s difficult to approach, but managers need to be trained on how to properly address conflict in a respectful way and make people aware of how they may be coming across, because sometimes people aren’t aware of that.
Yes, I think you should include it in your code of conduct.
The Chair: Interesting. Thank you.
Senator Jaffer: I have a challenge with a question you asked. With the greatest of respect, there are no managers. There is just managers for the administration; we don’t have managers.
The Chair: This policy would apply to all the members of the Senate — senators and personnel of the administration as well. We have to take care of them as well.
Senator Jaffer: We’ll have a discussion, but I can’t see how that can happen.
Senator Tkachuk: That’s why we talked about the unique situation we have here, because we have this horizontal level of senators, each one with his own little office.
Senator Jaffer: Silos.
Senator Tkachuk: But then we have a whole bureaucracy underneath us, members of which can often and have been intimidated by senators.
The Chair: By senators, you’re right.
Senator Tkachuk: So we have those two situations, and they are very different; they are going to be very different to deal with. We’re lucky we have some really smart people around who are coming before us and helping us out with this. It’s complicated.
The Chair: I want to state this, because it’s very important. Each and every employee of the Senate, be he or she a staffer, senator or member of the administration, has the right work in a harassment-free workplace. That’s why we are caring for all employees of the Senate.
Senator Jaffer, do you have another question?
Senator Jaffer: Just a matter of clarification: Is the vote at 8:25?
The Chair: Yes, at 8:25.
Senator Jaffer: We also have this report to look at.
Sorry, I do not mean to be rude to you, Ms. Hershcovis.
The Chair: We have time for a few questions still. Do you have another one?
Senator Jaffer: I wanted to be respectful if anybody else had questions.
The Chair: I think Senator Tkachuk is done. Senator Moncion, do you have any questions?
Senator Moncion: It’s ongoing.
Senator Jaffer: I’m going to come back to this. I’ve been listening to you for a short time. From the other meetings we have had, we will need to have a real discussion on our setup. Our setup is so different. There are managers, but there are managers for the administration. Nobody manages us.
Ms. Hershcovis: Right.
Senator Jaffer: Except perhaps our whips. But that’s also changing.
I’m saying that maybe with your help and the help of others, we have to look at how we do this. There is a lot of education that has to happen for senators and staff.
I want to come back to how we create an institutional safe place. How does that happen?
Ms. Hershcovis: It’s through mutual accountability and in recognizing that you have to hold each other accountable for how you’re behaving, and doing so in a respectful way, since we are talking about harassment. It’s important to make sure, if you see one of your colleagues behaving in a way that you think qualifies as harassment, that you let them know.
In my own research, I look at the power dynamics in witness reactions to workplace mistreatment. First of all, everyone is more likely to do nothing, but powerful people are a little bit more likely to confront the perpetrator and say something to them — “You shouldn’t have said that” — but they forget about the victim. It’s important to make sure you remember there’s a victim on the other end of that dynamic. Go over to them afterward and tell them, “I’m so sorry that happened to you, and here is how I addressed it.” That can create a safe and respectful culture.
The Chair: Senator Moncion?
Senator Moncion: I’m good.
The Chair: Professor Hershcovis, thank you, and congratulations on very interesting and relevant testimony, including your specific suggestions that you tabled in writing. You travelled from Calgary for us. It was really rewarding, so thanks again. Travel safely back home.
(The committee continued in camera.)