Articles of Interest

Human Rights and Harassment in the Workplace

by Odette Lalumière, Legal Counsel
June 2001

In its role as employer of the Public Service, Treasury Board has made a commitment to providing a workplace where "all persons...are treated with respect and dignity", and to this end it has amended its policy on harassment ("Policy on the Prevention and Resolution of Harassment in the Workplace"). The new policy has been in effect since June 1, 2001 and it goes beyond the requirements of the Canadian Human Rights Act ("CHRA") by addressing other types of workplace harassment such as harassment of a general nature, including rude, degrading or offensive remarks or e-mails, threats or intimidation.

The Treasury Board policy applies to the RCMP's handling of its relations with members and employees. The Force's internal harassment policy (see Administration Manual "AM" ch. XII.1) must therefore comply with the Treasury Board policy. Under the internal policy, employees, supervisors and managers all have specific responsibilities in this matter. Also, whenever a complaint of harassment is made, the RCMP has an obligation to investigate and determine whether it is well founded. The Committee recently reminded the Force of this obligation in case G-251 (See Communiqué of January-March 2001).

The main changes arising from the new policy are process-related. The Public Service Commission will now provide advice and training as well as mediation and investigation services to all departments and agencies covered by the policy.

Generally speaking, the new policy emphasizes managers' obligation to act rapidly when a potential harassment situation arises. The policy encourages the use of mediation and facilitation to defuse such situations and put an end to inappropriate behaviour without delay.

Harassment in all its forms is clearly unacceptable, and the RCMP has an obligation to provide a workplace that is free of harassment, and to intervene as soon as possible when a situation arises that may become harassment. It is therefore important for the RCMP to come to an understanding of the extent to which the new policy and the CHRA govern the work environment. This article is intended to detail the extent of these obligations.

Human Rights

Under the CHRA, it is a discriminatory practice to harass an individual on one of the prohibited grounds of discrimination listed in section 3. Thus for the Canadian Human Rights Commission ("CHRC"), harassment is a form of discrimination.

This same notion can be found in the RCMP's general policy on human rights, as set out in chapter II.13 of the AM. The policy stipulates that the RCMP provides its members with a workplace free of any form of discrimination. It also stipulates that the RCMP must comply with all the provisions of the CHRA.

Definitions

RCMP human rights policy states that the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, marital status, family status, conviction for which a pardon has been granted, disability and sexual orientation. This reflects the provisions of the CHRA.

Procedure and recourse options

With regard to the procedure to follow when members or employees believe they have been subject to a discriminatory act, here is what the AM provides:

E.3 Employees who believe they are the subject of a discriminatory act may submit their complaint directly to the Canadian Human Rights Commission (CHRC) but are encouraged to try and resolve the matter informally by exhausting all RCMP internal resolution mechanisms.

E.3. a. Section 41(1)(a) of the Canadian Human Rights Act states that "The alleged victim of a discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available." If dissatisfied with the results of the internal review, the complainant may contact a CHRC office.

Note that the CHRC enjoys a discretionary power under paragraph 41(1)(a). In Canada (Attorney General) v. Boutilier [2000] 3 F.C. 27, the Federal Court of Appeal held that it is up to the CHRC to decide whether a case should be sent to a grievance or review procedure until these are exhausted.

Case G-251, mentioned previously, illustrates a situation where a member who believed himself to be a victim of discrimination both grieved and went to the CHRC. The member had complained that he was a victim of harassment by his supervisor. He initially declined to make a complaint of harassment; rather he simply wanted the harassment to stop. However, after five months, the member decided to act because he believed the harassment was continuing. First, he made a complaint to the CHRC, but the Commission determined that it did not have jurisdiction because abuse of authority is not a prohibited ground of discrimination under the CHRA. The member therefore grieved to the RCMP, but the Appropriate Officer took the view that the complaint was not well founded because the abuse of authority was not related to a ground of discrimination prohibited in the CHRA. The Level I adjudicator agreed with this interpretation. The adjudicator also stated that the member could not make a harassment complaint concerning matters which had already been raised through the grievance procedure. These conclusions were completely erroneous. First, any member who is dissatisfied with the results of internal recourses may contact an office of the CHRC. Second, members do not need to demonstrate that the harassment was based on one of the prohibited grounds of discrimination listed in the CHRA. This is because the RCMP is also bound by the Treasury Board policy which provides that abuse of authority constitutes harassment. The Commissioner agreed with the Committee's conclusions in this case.

Harassment

With regard to harassment in the workplace, the RCMP's policy is found in Chapter XII of the AM. It states that "The RCMP is committed to providing a working environment free from harassment, discrimination and any resulting conflict, in which all employees are treated with respect and dignity. Each individual has the right to work in a professional atmosphere which promotes equal opportunity and prohibits discriminatory practices".

Definitions

The Treasury Board policy states that harassment includes degrading remarks, jokes or taunting, insulting gestures, displays of offensive pictures or materials, and unwelcome enquiries or comments about someone's personal life, as well as conduct, comments or gestures of a sexual nature that may offend or humiliate an employee.

Harassment also includes conduct, comments or displays that demean, belittle or cause humiliation or embarrassment to an employee, as well as any intimidation or threat.

ERC 2400-95-004 (G-235) was a case of degrading remarks and jokes that was analysed by the Committee. The member made a complaint in which he alleged that he had been a victim of harassment by a staff sergeant in his division. Specifically, he alleged that derogatory remarks had been made about him. For example, the staff sergeant had apparently said that members who did not support their supervisors to a sufficient degree would pay a very high price. Also, the member alleged that the staff sergeant had criticized him for no reason in a report, and had even blocked his chances of promotion within the RCMP. The allegations were investigated. On the basis of the information gathered, the investigator concluded that it was a problem of performance, not of conduct. When a second-level grievance was made, the Committee stated that it was unnecessary to establish that the harassment was deliberate, but that the fact of not liking someone is not necessarily harassment. With regard to the allegations concerning derogatory remarks, after reviewing the information, the Committee found that the remarks had been made not in private but in public; also they were clearly offensive and unwelcome. With regard to the other allegations, concerning the member's chances of promotion, the Committee was unable to conclude that this constituted harassment. The Commissioner agreed with these conclusions.

The display of offensive pcitures is also a form of harassment. An example was discussed in Charlotte Pond v. Canada Post Corporation, an unreported decision handed down on June 3, 1994, by a Canadian Human Rights Tribunal. The complainant alleged that her employer had failed to provide an unpoisoned work environment by allowing photos of naked women to be posted inside the station. The Tribunal decided in favour of the complainant, finding that the photographs were pornographic and that the display of such material constituted sexual harassment and poisoned the atmosphere in which the complainant worked.

Furthermore, the RCMP's internal policy considers the improper use of power and authority to be harassment. An example is case ERC 2200-00-007 (G-253). The member had grieved the decision of the NCO in the complaints and internal investigations section who had found that a complaint of harassment she had made was without foundation. The Appropriate Officer had explained to the member that when her supervisor had spoken the impugned words, he was trying to make her aware that the members generally no longer liked her very much and that she should take suitable corrective action. The Level I Adjudicator upheld the grievance but did not provide redress. The member therefore presented a Level II grievance in order to receive an explicit apology. The Committee noted that according to Treasury Board policy, intimidation, threats, blackmail or coercion constitute abuse of authority and are therefore a form of harassment. The RCMP's policy, the Committee noted, was to the same effect. It defines harassment as "any improper behaviour by a person that is directed at, and is offensive to, another employee and which the person knew or ought reasonably to have known would be unwelcome". The Committee concluded that the decision of the Appropriate Officer was irregular and demonstrated that he did not understood the RCMP's policy on harassment. The Commissioner agreed with the Committee's conclusions and recommendations.

It is important to see that the point of reference in a harassment case is the perception of a reasonable person. Conduct that is not perceived as offensive by the person engaging in that conduct is nevertheless harassment if a reasonable person would find the conduct to be humiliating, offensive or threatening.

Repetition of the conduct

In Canada (Human Rights Commission) v. Canada (Armed Forces) [1999] 3 F.C. 653, the Federal Court held that the harassing nature of the conduct is calculated according to the "inversely proportional" rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct and its consequences, the more persistence will have to be demonstrated.

Responsibility

The RCMP's internal policy states that it is up to commanders or supervisors to prevent harassment. To this end they must take all necessary action to protect complainants; establish and maintain a work environment that is free of harassment; and take appropriate measures to resolve conflict and intervene in any situation that could develop into harassment.

Treasury Board's policy provides that disciplinary measures may be taken against any manager who is aware of a harassment situation and who fails to take corrective action. This reflects obligations arising from the CHRA.

There is a case law from the Canadian Human Rights Tribunal which establishes that employers may avoid responsibility only if they can prove that three conditions have been met: (1) the employer did not consent to the commission of the act or omission complained of; (2) the employer exercised all due diligence to prevent the act or omission from being committed; and (3) the employer exercised all due diligence subsequently to mitigate or avoid the effect of the act or omission. Everything depends on the employer's response: it must be quick and effective; it must be proportional to the seriousness of the incident. The employer must act in a way that could reasonably be expected to resolve the situation.

The approach taken in the new Treasury Board policy reflects this jurisprudence, with its emphasis on prevention.

Reprisals

A final point to bear in mind is that the RCMP's internal policy, the Treasury Board policy and the CHRA all provide that disciplinary action, up to and including dismissal, may be taken against anyone who interferes with the resolution of a complaint by threats, intimidation or retaliation, or takes or threatens to take retaliatory action against the complainant or the presumed victim.

Conclusion

When a person is harassed in the workplace, everyone suffers. The victim suffers of course, but so do the victim's colleagues and superiors. The morale of the entire team, indeed the organization, is affected. The individual who is guilty of harassment is putting his or her career in jeopardy, and such individuals may also be creating liabilities for their employer. The situation will only get worse if the harassment is tolerated.

That is why preventing harassment in the workplace is everyone's business. Aside from being sensitive to offensive conduct, every employee, executive, supervisor and manager has a duty to help ensure that the climate in the workplace is one of trust and mutual respect.