LAW

The war of the sexes

New calls for rulTTes on sexual harassment

NORA UNDERWOOD October 28 1991
LAW

The war of the sexes

New calls for rulTTes on sexual harassment

NORA UNDERWOOD October 28 1991

The war of the sexes

New calls for rulTTes on sexual harassment

LAW

The 44-year-old black woman, who took her complaint to Ontario's Workers' Compensation Board, said that she was constantly harassed

during a six-year period in the 1980s by male co-workers at the Colgate-Palmolive Canada soap factory in the Toronto area. The woman,

Despite a complaint to her union and to the company’s management, the woman said that she received little support and eventually suffered a nervous breakdown.

whose name was not made public, worked on a packing line and said that men there would frequently leave obscene drawings in her locker, make racist and sexist remarks and, in one incident, gave her a piece of soap carved in the form of a penis.

In June, 1990, in a precedentsetting decision, the Workers’ Compensation Board hearings officer ordered the company to pay an as-yetundetermined amount for illnesses that stemmed from the stress of enduring sexual harassment on the job. Colgate officials vowed to fight the award, but late last month withdrew their appeal. The landmark case opened up another avenue of complaint for victims of sexual harassment in the workplace. Still, many experts say that it remains widespread in Canadian society—and often is not dealt with seriously enough.

The dramatic confrontation this month between University of Oklahoma law professor Anita Hill and her former employer, U.S. Supreme Court nominee Clarence Thomas, focused new attention on the issue. After Hill testified before the Senate judiciary committee in Washington that Thomas harassed her by repeatedly asking for dates, boasting of his sexual prowess and describing pornographic movies, the Senate last week ratified Thomas’s appointment to the court by a vote of 52 to 48.

For its part, the Supreme Court of Canada, in deciding a case in 1989, defined sexual harassment 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.” According to studies carried out in the United States and Canada, sexual harassment in the workplace affects an estimated 80 to 90 per cent of women at some point in their lives. (Only a small number of men ever complain of sexual harassment.) In 1990, federal and provincial human rights commissions received hundreds of complaints of sexual harassment in the workplace. Said Maxwell Yalden, chief commissioner of the federal human rights commission: “It is a problem that is very much present and very much felt by women across the country.” He added: “Whatever the numbers are, it’s a shattering experience for the individual.”

Telling jokes, putting an arm around a coworker or asking a colleague for a date is not, according to experts in the field, unacceptable behavior in the right context. But they concede

that what does constitute sexual harassment in the workplace is difficult for some people to grasp. Experts say that the offending behavior typically takes one of two forms. The first occurs when there is an implied or explicit link between requested sexual favors and a promotion or job security. The second form of harassment occurs when a person—particularly a superior—subjects an employee to unwelcome attentions that create a poisoned, uncomfortable or hostile working environment. “It is much more subtle than most people think,” said lawyer and criminologist Judith Osborne, harassment policy co-ordinator at Simon Fraser University in Burnaby, B.C. “It’s not always the blatant touching, feeling or making sexual requests. It’s often wrapped up as a joke—often not a very funny joke.” Osborne added: “In many workplaces, those kinds of off-color conversations—the sort of dissecting of people’s sex lives—is seen as being the regular Monday-morning conversation.”

Many experts say that the reason sexual harassment has become more of an issue in recent years is the increasing number of women in the workforce. The resulting change in rules for workplace behavior, they add, has confused many men. “Men say, ‘Anyone could accuse me of sexual harassment and I didn’t mean to do it at all,’ ” said Nancy Adamson, co-ordinator for the status of women and a sexual-harassment adviser at Carleton University in Ottawa. “I say, think about whether you would like someone to do this to your mother, your daughter, your wife. And if you feel uneasy at all about the behavior, stop it.” Adamson and others concede that it is difficult to make people fully

understand the seriousness of sexual harassment. Added Adamson:

“There’s no reverse situation. You can’t say to men, ‘Imagine if a woman were doing this to you.’ It’s not the same thing.”

Still, some critics maintain that existing definitions of sexual harassment are too vague and can have the effect of trapping innocent people. “When is a look a leer?” said Howard Levitt, a Toronto lawyer who specializes in wrongfuldismissal suits. “When is an invitation to dinner a come-on?” Levitt also claims that the potential exists for people to frivolously accuse someone of sexual harassment. Explained Levitt: “The very fact of the allegation is so destructive to their career that the person who is being accused is likely to pay a tremendous amount of money to keep the accuser quiet.”

The effects of genuine sexual harassment on a victim can be devastating, according to experts. “It has a real, sinister, debilitating kind of effect on one’s self-esteem,” said Debi Forsyth-Smith, president of the Halifax-based Nova Scotia Ad-

visory Council on the Status of Women. “People say, ‘Why is this happening to me?’ And sexual harassment generally happens in isolation, behind a closed door when nobody else is around.” As well, victims are often harassed by superiors. Said Adamson: “When you are in a position of power and you start touching or making sexual jokes or innuendoes, those under you have to think about their position before they challenge your behavior.” Following through with a formal complaint in Canada can be a daunting and lengthy process for sexual-harassment victims. Ac-

cording to Yalden, the victim will usually file a complaint with the federal or provincial human rights commission against both the alleged harasser and the employer (under Canadian law, employers have a responsibility for a harassment-free workplace). If officials believe that there are grounds for the complainant’s case, they will begin gathering evidence.

Throughout the process, Yalden explained, the commission will make every attempt to arrive at an informal settlement between the parties. If none can be reached, the commission will, if warranted, appoint a conciliator to try to find a settlement. Failing that, a tribunal can be established to hear testimony in public. Finally, the board reaches a conclusion and issues an order, which could involve the awarding of financial damages, the reinstatement of a job or the granting of a promotion that was previously denied as a result of the complainant’s refusal to comply with the harasser’s demands. The employer and the individual charged with harassment could then appeal the commission’s decision before the courts. In some cases, the process can take years before all the appeals have been heard and a final ruling has been rendered.

Some experts maintain that victims of sexual harassment in the workplace are not served well under the current system. Because sexual harassment is not a criminal offence, a complainant has no recourse but to go to a human rights commission. In most provinces, commissions have large backlogs of cases. Another problem, according to Levitt, is that the commissions tend to “give notoriously puny awards for anything other than proof of economic loss.” Financial damages typically range from $250 to $3,000. Indeed, the consequences of filing a complaint may outweigh the benefits. Complainants, said Levitt, “have to go to the human rights commission, make a complaint, prove they’re harassed, wait a number of years and, even if they win, it might be difficult to get a job somewhere else because they’re seen as shit-disturbers.” But ultimately, experts agree, most victims of sexual harassment are really only seeking one thing: for the offensive behavior to stop.

NORA UNDERWOOD