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RIGHTS, RESPECT AND DIGNITY: INTERFACE OF LABOUR STANDARDS AND HUMAN RIGHTS LEGISLATION

COLLEEN SHEPPARD*

NOVEMBER 2005

* Associate Professor & Research Director, Centre for Human Rights and Legal

Pluralism, Faculty of Law, McGill University. I wish to thank Pauline Gregoire, a student at the Faculty of Law, McGill University, for her invaluable research assistance on this project. I also wish to thank Professor Katherine Lippel for her very helpful comments on an earlier draft of this study.

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RIGHTS, RESPECT AND DIGNITY: INTERFACE OF LABOUR STANDARDS AND HUMAN RIGHTS LEGISLATION

EXECUTIVE SUMMARY INTRODUCTION 1. FROM HUMAN RIGHTS TO LABOUR STANDARDS: LEGISLATIVE PROHIBITIONS ON SEXUAL HARASSMENT 2. BEYOND SEXUAL HARASSMENT: EMERGING RECOGNITION OF GROUNDS-BASED HARASSMENT 3. WORKPLACE EQUALITY AND LABOUR STANDARDS 4. PSYCHOLOGICAL HARASSMENT: A NEW LABOUR STANDARD AND A NEW HUMAN RIGHT 5. HUMAN RIGHTS AND LABOUR STANDARDS: ENFORCEMENT AND ACCESS TO JUSTICE 6. WORKING RECOMMENDATIONS SELECTED BIBLIOGRAPHY

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RIGHTS, RESPECT AND DIGNITY: INTERFACE OF LABOUR STANDARDS AND HUMAN RIGHTS LEGISLATION EXECUTIVE SUMMARY This study explores the interface of human rights and labour standards legislation, focussing on workplace harassment. A focus on harassment is a revealing lens through which to analyse this issue because protections against harassment have been included in both the Canadian Human Rights Act and the Canada Labour Code. In terms of the intersection of labour standards and human rights, the regulation of sexual harassment reveals the progression of legislative protection from a general human rights standard to a more particularized and proactive labour law protection. This progression parallels legislative developments with respect to other discrimination issues in the workplace. Thus, human rights laws often articulate general, fundamental entitlements more akin to broad constitutional rights affirming the general principles of equality and non-discrimination. In contrast, labour laws provide the more detailed institutional exigencies for the effective implementation of human rights principles in the workplace. The regulation of sexual harassment in both human rights and labour standards legislation also reveals a growing conceptual overlap between human rights and labour standards. Labour standards are increasingly recognized as having significant human rights dimensions. Similarly, human rights are gradually being understood as requiring employer policies, practices and standards that are conducive to equality. Indeed, the regulatory progression toward more proactive employer obligations incorporates insights found in the conceptual shift from formal to substantive equality. Discrimination is understood as a systemic, pervasive and institutionalized phenomenon rather than simply an anomalous and aberrant incident perpetrated by a chauvinistic or racist individual in an otherwise fair world. Despite the trend towards more systemic regulatory approaches at the interface of human rights and labour law, the Canada Labour Code provisions on sexual harassment do not require a proactive review of structural or systemic sources of vulnerability to sexual harassment. Whether labour standards on sexual harassment provisions should more directly require consideration of these larger related questions of structural and systemic inequality is an important question. In addition, the question of whether the existing federal labour standards provisions on sexual harassment should be extended to address other forms of discriminatory harassment, psychological harassment and discrimination and equity issues more generally is also addressed, including the substantive and procedural issues raised by such an expansion. The question of psychological harassment is accorded extended consideration due to its current inclusion in Quebec labour standards legislation. Given the centrality of work to the everyday lives of individuals, it is critical to develop legislative frameworks that aid in preventing human rights violations at work. It is also essential to ensure fair, accessible and effective investigative, mediation and adjudicative processes for addressing violations that do occur. One key recommendation includes an

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expansion of the labour standards provisions on harassment to incorporate an affirmative obligation on employers to develop a policy and internal complaints process for all forms of harassment in the workplace, including psychological and grounds-based harassment. Whereas an investigative, mediation and adjudicative procedure would also be necessary for alleged violations of psychological harassment that were not resolved through an employers internal processes, for discriminatory harassment, reliance on the human rights commission process is endorsed. Another important recommendation is improved mechanisms for increasing employee participation through the establishment of joint management-labour human rights committees to monitor harassment and discrimination issues in the workplace, to develop policy and best practices, to address accommodation issues and to ensure an equitable work climate.

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LES DROITS, LE RESPECT ET LA DIGNIT : RELATION ENTRE LES NORMES DU TRAVAIL


ET LA LGISLATION CONCERNANT LES DROITS DE LA PERSONNE

RSUM La prsente tude examine la relation entre les droits de la personne et la lgislation concernant les normes du travail en mettant laccent sur le harclement en milieu de travail. Lexamen du harclement donne un point de vue rvlateur sur cette question, car la protection contre le harclement est prvue en vertu de la Loi canadienne sur les droits de la personne et en vertu du Code canadien du travail. En ce qui concerne la conjonction entre les normes du travail et les droits de la personne, la rglementation sur le harclement sexuel dmontre la progression de la protection lgislative partir dune norme concernant les droits de la personne en gnral une protection particularise et proactive en vertu de la lgislation en droit du travail. Cette progression sest faite en parallle avec les dveloppements lgislatifs lgard dautres questions concernant la discrimination en milieu de travail. En consquence, les lois concernant les droits de la personne assurent une large protection de base, semblable celle des droits constitutionnels de large porte, en affirmant les principes gnraux de lgalit et de la non-discrimination. Quant lui, le droit du travail prvoit les particularits institutionnelles plus dtailles pour lapplication efficace des principes des droits de la personne en milieu de travail. La rglementation sur le harclement sexuel dans la lgislation concernant les droits de la personne et les normes du travail indique un chevauchement conceptuel accru entre les droits de la personne et les normes du travail. On admet maintenant que les normes du travail comportent un volet significatif de droits de la personne. De la mme manire, on admet que le respect des droits de la personne exige que les employeurs appliquent des politiques, des pratiques et des normes favorisant lgalit. En fait, la progression de la rglementation vers limposition dobligations plus proactives de la part des employeurs comporte une transition conceptuelle de lgalit formelle une galit relle. La discrimination est perue comme un phnomne institutionnalis, systmique et envahissant plutt quun incident anormal et aberrant perptr par une personne borne ou raciste fonctionnant dans un monde autrement quitable. Malgr la tendance adopter une approche rglementaire plus systmique linterface des droits de la personne et du droit du travail, les dispositions du Code canadien du travail concernant le harclement de nature sexuelle nexigent aucunement un examen proactif des sources structurelles ou systmiques de la vulnrabilit au harclement de nature sexuelle. La question de savoir si les normes du travail concernant le harclement sexuel exigent quune tude de lingalit structurelle et systmique soit effectue est importante. En outre, la question de savoir si les normes fdrales du travail actuelles concernant le harclement sexuel doivent tre largies pour comprendre dautres formes de harclement discriminatoire, psychologique et lquit en emploi en gnral est galement discute en mme temps que les questions substantielles et procdurales que

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cet largissement pourraient comporter. Compte tenu de son inclusion aux normes qubcoises du travail, la question du harclement psychologique est examine en dtail. Compte tenu de limportance du travail sur la vie personnelle, il est essentiel dlaborer des cadres lgislatifs qui aident prvenir le non-respect des droits de la personne en milieu de travail. Il est galement essentiel dassurer la mise en place dune procdure quitable, accessible et efficace pour les tapes de lenqute, de la mdiation et de la prise de dcision afin de traiter les contraventions qui peuvent se produire. Une recommandation importante comporte llargissement de la porte des normes du travail concernant le harclement afin dimposer une obligation expresse aux employeurs dlaborer une politique et une procdure de plainte pour toutes les formes de harclement en milieu de travail, y compris le harclement psychologique et le harclement en raison de motifs tangibles. Bien quune procdure denqute, de mdiation et de prise de dcision soit galement ncessaire pour des cas allgus de harclement psychologique qui nont pas t rgls selon un processus interne de lemployeur, en ce qui concerne le harclement discriminatoire, le recours aux tribunaux des droits de la personne est prconis. Une autre recommandation importante est celle qui prconise une amlioration des mcanismes de la participation des employs grce la mise sur pied des comits conjoints sur les droits de la personne en milieu de travail pour faire la surveillance du harclement et de la discrimination en milieu de travail, laborer des politiques et les meilleures pratiques, traiter des question concernant le devoir daccommoder et assurer un climat de travail quitable.

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INTRODUCTION

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment.1

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his [or her] sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.2 Legal norms play the role of opening spaces for ongoing engagement about current practice in relation to aspirations that have been identified to be of public significance. Law is elaborated through dynamic interactions on the ground. Law institutionalizes occasions for analysis, reflection, relationship building, boundary negotiations and institution building.3

When violations of human dignity occur in the workplace, an individuals everyday world is implicated a world intimately connected to economic security, social engagement and belonging. Even if the violation entails a discrete incident, the effects often linger and fester, undermining individual well-being and poisoning workplace relations. When no institutional response ensues, the initial violation of human dignity is accentuated. If the violation is recurrent, the workplace becomes a site of fear, malaise, resentment and stress. There is no doubt that society has a significant interest in preventing violations of human dignity in the workplace. The more difficult question is how to go about doing this. In this study, I endeavour to provide some responses to this question by exploring the phenomenon of workplace harassment and examining legislative efforts to prevent and redress it in human rights and labour standards legislation.

Law v. Canada, [1999] 1 S.C.R. 497 at para. 55. Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at 368 (per Dickson C.J.). 3 Susan Sturm, Owen Fiss, Equality Theory, and Judicial Role (2003) Issues in Legal Scholarship: The Origins and Fate of Antisubordination Theory (Berkeley Electronic Press), article 18 at 7.
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A focus on harassment at work provides a revealing lens through which to analyze the interface of human rights and labour standards because protections against harassment have been included in both the Canadian Human Rights Act4 and the Canada Labour Code.5 Part 1, therefore, begins by reviewing the development of legislative prohibitions on sexual harassment at work, including its initial regulation through human rights legislation and its subsequent inclusion in federal labour standards provisions. Part 2 assesses whether a parallel regulatory approach should be implemented with respect to other types of discriminatory harassment; just as the human rights code protections against harassment were extended to cover a broader range of grounds-based harassment, should labour standards provisions be expanded to include other types of discriminatory or grounds-based harassment? Part 3 looks at whether the justifications for including labour standards protections against harassment are equally applicable to other human rights concerns, including other discrimination issues arising in the workplace. Should employers be required to develop internal policies to address equality concerns more generally?

Part 4 then turns to emerging developments on psychological harassment, focussing on the new Quebec legislative developments, 6 while drawing on earlier European developments, and approaches to workplace violence more generally in other jurisdictions. Psychological harassment is not necessarily linked to any group-based discrimination. It affirms an individual entitlement to be treated with dignity and respect at work. Its location in labour standards legislation and not in human rights legislation has important implications in terms of the procedural mechanisms for vindicating rights and seeking remedies. Part 5 explores recurring dilemmas regarding the effective enforcement of protections against violations of human dignity at work. Integral to this regulatory debate are questions about access to justice, multiple and overlapping jurisdiction, and labour standards versus human rights or grievance arbitration processes
Canadian Human Rights Act, R.S. 1985, c. H-6. Canada Labour Code, R.S. 1985, c. L-2. Other human rights issues also raise important questions about the interface of labour standards and human rights. Although I highlight some of these issues, this study is primarily limited to the extensive and complex issues relating to harassment. 6 An Act respecting labour standards, R.S.Q. c. N-1.1, ss. 81.18 to 81.20.
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for securing respect and human dignity at work. The efficacy of proactive, preventive strategies versus retroactive, complaints-driven approaches is also examined. Part 6 provides some working recommendations.

1. FROM HUMAN RIGHTS TO LABOUR STANDARDS: LEGISLATIVE PROHIBITIONS ON SEXUAL HARASSMENT Sexual harassment has a long history in the Canadian workplace.7 The naming of sexual harassment as a problem and the provision of legal remedies in the wake of harassment, however, did not emerge until the 1970s.8 In one of the leading Supreme Court of Canada decisions on sexual harassment, Janzen v. Platy Enterprises Inc.,9 Dickson C.J. wrote: When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and selfrespect of the victim both as an employee and as a human being.10 At the time the Janzen case arose, there were no explicit legislative protections against sexual harassment in Manitoba,11 although such provisions did exist in other jurisdictions. It was necessary, therefore, that sexual harassment be understood as a form of sex discrimination in order for human rights protection to be available. Drawing on a growing body of human rights tribunal jurisprudence and US case law, the Supreme Court concluded that sexual harassment constitutes a form of sex discrimination.12 Legal recognition of sexual harassment as a form of sex discrimination was an affirmation of
7

See Constance Backhouse & Leah Cohen, Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan of Canada, 1979) [Backhouse]; Colleen Sheppard, "Systemic Inequality and Workplace Culture: Challenging the Institutionalization of Sexual Harassment" (1995) 3 Can. Lab. & Emp. L.J. 249 [Sheppard]; and Arjun P. Aggarwal & Madhu M. Gupta, Sexual Harassment in the Workplace, 3rd ed. (Markham, Ontario: Butterworths, 2000) [Aggarwal]. 8 See Backhouse, ibid.; and Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979). 9 Janzen v. Platy Enterprises ltd., [1989] 1 S.C.R. 1252 [Janzen]. 10 Ibid. at para. 56. 11 The Manitoba Human Rights Code, C.C.S.M. c. H175, was amended in 1987 to provide express protection against sexual harassment. 12 Supra note 9 at para. 44 & ff.

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how womens economic well-being was disparately undermined by sexual harassment. It also revealed how systemic resistance to womens presence in traditionally male fields of employment manifested itself through sexual harassment,13 and the ways in which sexuality could be abused in a gendered workplace hierarchy.14

At the federal level, the Canadian Human Rights Act, 1977 had been amended in 1983 to make explicit that sexual harassment constituted a form of sex discrimination.15 The current provisions on harassment read: s. 14. (1) It is a discriminatory practice, (a) in the provision of goods, services, facilities or accommodation customarily available to the general public, (b) in the provision of commercial premises or residential accommodation, or (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination. (2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.16 Harassment is generally defined as physical or verbal conduct that is offensive or humiliating. It includes:
13

threats, intimidation, or verbal abuse; unwelcome remarks or jokes about subjects like your race, religion, disability or age; displaying sexist, racist or other offensive pictures or posters; sexually suggestive remarks or gestures; inappropriate physical contact, such as touching, patting, pinching or punching;

See Sheppard, supra note 7 at 267-274. See also CN. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 [CN Rail]. 14 Sheppard, ibid. at 281-285. 15 S.C. 1980-81-82-83, c. 143, s. 7. 16 Supra note 4. See discussion in Aggarwal, supra note 7 at 56-59.

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physical assault, including sexual assault.17

Although harassment is often associated with repetitive behaviour occurring over an extended period of time, it can consist of a single act that is serious and harmful. Generally, in the workplace context, harassment results in a negative and hostile working environment that can impact upon job opportunities, hiring, promotions and job performance.18 The breadth of the definition of workplace harassment in human rights laws is particularly significant in terms of potential overlap with legislative prohibitions of psychological harassment or occupational health and safety provisions on workplace violence.

Judicial recognition of employer responsibility for harassment in the workplace under the Canadian Human Rights Act was forcefully articulated by Justice La Forest in Robichaud v. Canada (Treasury Board).19 The Court emphasized that only an employer can provide the most important remedy a healthy work environment.20 Interestingly, La Forest J. also noted that the remedial and preventive interpretation he accorded to the legislation promoted an approach that makes human rights education begin in the workplace, in the micro-democracy of the work environment, rather than in society at large.21 The current provisions of the Canadian Human Rights Act impose liability on employers for discrimination or harassment by an officer, director, agent or employee.22 The legislation does provide an exception for employers who can prove that they did not consent to the discriminatory act, that they exercised due diligence to prevent the discrimination or harassment, and that they acted to mitigate the effects of the discrimination.23 The Canadian Human Rights Commission describes the employers obligations as follows:
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Canadian Human Rights Commission, Harassment: What It Is and What to do About It, online: Canadian Human Rights Commission http://www.chrc-ccdp.ca/publications/what_is_it-en.asp?highlight=1. 18 Ibid. 19 [1987] 2 S.C.R. 84 [Robichaud]. 20 Ibid. at para. 15. See also, Karen Schucher, Achieving a Workplace Free of Sexual Harassment: The Employers Obligations (1995) 3 Can. Lab. & Emp. L.J. 171. 21 Ibid. at para. 16. On the importance of democratic participation in the workplace, see also Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 at 335 (per La Forest J.). 22 Supra note 4, s. 65(1). 23 Ibid., s. 65(2).

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The employer is responsible for any harassment that occurs in the workplace. It is the employers duty to: make it clear that harassment will not be tolerated; establish a harassment policy; make sure every employee understands the policy and procedures for dealing with harassment; inform supervisors and managers of their responsibility to provide a harassment-free work environment; investigate and correct harassment problems as soon as they come to light, even if a formal complaint has not been received.

The employer should be prepared to take appropriate disciplinary action against an employee found to have harassed someone.24 It is significant to note that, pursuant to human rights legislation, employers have proactive obligations to develop internal anti-harassment policies. The codification of this requirement with respect to sexual harassment effectively restates that which is implicit in human rights laws.

Shortly after the amendments relating to sexual harassment were introduced in the Canadian Human Rights Act, provisions on sexual harassment were added to the federal labour standards legislation. Recognition of the importance of employers acting to prevent and address problems of sexual harassment in the federally-regulated workplace prompted the inclusion of a special section in Part III of the Canada Labour Code in 1985,25 where sexual harassment is defined as: any conduct, comment, gesture or contact of a sexual nature (a) that is likely to cause offence or humiliation to any employee; or (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.26 The legislation expressly provides that employees are entitled to a workplace free of sexual harassment and requires employers to make every reasonable effort to ensure
24 25

Supra note 17. See supra note 5, ss. 247.1- 247.4.

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that no employee is subject to sexual harassment.27 Specifically, after consulting with employees or their representatives, employers must issue and disseminate a policy statement on sexual harassment containing: (a) a definition of sexual harassment that is substantially the same as the definition in section 247.1 [as quoted above]; (b) a statement to the effect that every employee is entitled to employment free of sexual harassment; (c) a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment; (d) a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer's direction who subjects any employee to sexual harassment; (e) a statement explaining how complaints of sexual harassment may be brought to the attention of the employer; (f) a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and (g) a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.28

Of significance with respect to these provisions is the cross-referencing to the Canadian Human Rights Act. Rather than establish a specific procedure for individual complaints under the Canada Labour Code, individuals are to be made aware of the protections in the Canadian Human Rights Act and directed to its human rights complaint process. Compliance with the obligation to develop a sexual harassment policy is limited to the general inspection procedures in the Canada Labour Code.29

Despite the innovative inclusion of sexual harassment provisions in labour standards legislation, it has not been the focus of much commentary or analysis. It is discussed by
26 27

Ibid., s. 247.1. Ibid., ss. 247.2 & 247.3, respectively. 28 Ibid., s. 247.4 [emphasis added].

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Arjun P. Aggarwal and Madhu M. Gupta in their book, Sexual Harassment in Canada.30 They applaud the inclusion of sexual harassment in the Canada Labour Code, and suggest that it reinforces this public policy and the determination on the part of the federal government to combat sexual harassment with full force.31 The provision on sexual harassment in the Canada Labour Code is very significant indeed. Firstly, it would provide protection against sexual harassment to a large number of women working in unorganized sectors such as financial institutions. Secondly, it would provide an impetus to the provincial governments to prohibit sexual harassment in their respective industrial relations statutes. Thus, the issue of sexual harassment by that process would not be confined only to human rights agencies but would become an industrial relations concern.32 It does not appear that the changes to the Canada Labour Code have prompted parallel legislative amendments at the provincial level, although employer liability and the importance of prevention have been similarly emphasized in the interpretation of provincial human rights laws.33 Moreover, grievance arbitration may be relied upon at both the federal and provincial levels to address problems of sexual harassment.

The inclusion of provisions on sexual harassment as both a human rights and a labour standard prompts consideration of the theoretical significance of the statutory location of workplace entitlements. In terms of the intersection of labour standards and human rights, what can we learn from the example of sexual harassment? One observation that can be made is the progression of legislative protection from a general human rights standard to a more particularized labour law protection. With respect to an important labour issue implicating human dignity at work, we can see how the general overarching antidiscrimination provisions were used to respond to a previously unacknowledged form of inequality in the workplace sexual harassment. What began as an innovative interpretive approach to equality then becomes a specific human rights protection and

29 30

Supra note 5 at s. 249. Aggarwal, supra note 7. 31 Ibid. at 59. 32 Ibid. at 60. 33 Ibid.

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subsequently is subject to express legal requirements for a preventive, internal employer policy.

This progression from a general human right to a specific, proactive and preventive labour standard parallels legislative developments with respect to other discrimination issues in the workplace. For example, federal employment equity and provincial employment and pay equity laws provide specialized statutory frameworks for promoting proactive and preventive approaches to equality protections at work.34 Statutory mandates require that certain issues that would not necessarily make it onto employer policy agendas be addressed. Thus, human rights laws articulate general, fundamental entitlements more akin to broad constitutional rights affirming the basic principles of equality and non-discrimination; labour laws provide the more detailed institutional exigencies for the effective implementation of general human rights principles in the workplace.

The regulation of sexual harassment in both human rights and labour standards legislation also reveals a growing conceptual overlap between human rights and labour standards. Labour standards are increasingly recognized as having significant human rights dimensions.35 Current provisions in the Canada Labour Code, for example, address not only sexual harassment, but also sick leave, parental and compassionate care leave, unjust dismissal, accommodation of communication needs of employees, protective

Employment Equity Act, S.C. 1995, c. 44 [Employment Equity Act]. See also Carol Agocs, Canadas Employment Equity Legislation and Policy, 1986-2000: Unfulfilled Promises in Carol Agocs, ed., Workplace Equality: International Perspectives on Legislation, Policy, and Practice (New York: Kluwer Law International, 2002) [Workplace Equity]; A.B. Bakan & A. Kobayashi, Employment Equity Policy in Canada: An Interprovincial Comparison (Ottawa: Status of Women Canada, 2000), online: Status of Women Canada, online: http://www.swccfc.gc.ca/pubs/0662281608/index_e.html; and Canada, Federal Pay Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (Final Report) (Ottawa: Federal Pay Equity Task Force, 2004), online: Department of Justice Canada http://www.justice.gc.ca/en/payeqsal/docs/PETF_final_report.pdf. 35 See Adelle Blackett & Colleen Sheppard, Collective Bargaining and Equality: Making Connections (2003) 142 International Labour Review 419 [Blackett & Sheppard]. See also Judy Fudge, Labour Laws Little Sister: the Employment Standards Act and the Feminization of Labour (Ottawa: Canadian Centre for Policy Alternatives, 1991).

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reassignment during pregnancy, equal pay and occupational health and safety. Moreover, the working conditions for vulnerable workers, who are disproportionately racialized, immigrant, migrant, women, disabled, young and old, are closely linked to the minimum floor of protections set out in labour standards. Workers from these social groups are also disproportionately excluded from the reach of traditional labour standards, which are applicable based on affiliation with a federally regulated workplace. 36 In this respect, equality concerns infuse all of the various debates around labour standards. Indeed, particularly at the international level, the notion of human rights standards is emerging in legal discourse.37 Similarly, human rights are increasingly understood as requiring employer policies, practices and standards that are conducive to equality. The traditional negative rights paradigm and formal understanding of equality have been fundamentally challenged by the recognition that discrimination systemic and embedded in apparently neutral standards and practices. It is no longer possible to limit human rights violations to aberrant wrongful acts in the workplace; rather, they are entrenched in the systems, standards, structures and practices at work.

Indeed, the regulatory progression toward more proactive employer obligations incorporates insights from the conceptual shift from formal to substantive equality. Over the past 20 years, the legal meaning of discrimination in the workplace has evolved to encompass not only intentional and detrimental differential treatment, but the harm that results from the unequal effects of facially neutral rules, practices and policies, even in

Blackett & Sheppard, ibid. See also Kerry Rittich, Vulnerability at Work: Legal and Policy Issues and the New Economy (Law Commission of Canada, 2004), online: Law Commission of Canada http://www.lcc.gc.ca/pdf/rittich.pdf; & Cynthia Cranford, Leah F. Vosko & Nancy Zukewich, The Gender of Precarious Employment in Canada (2003) 58:3 Relations industrielles/Industrial Relations 454. For an analysis of inequitable exclusions regarding maternity and parental leave, see Nitya Iyer, Some Mothers are Better than Others: A Re-Examination of Maternity Benefits in Susan Boyd, ed., Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997) at 168-194. See also Fiona Sampson, Globalization and the Inequality of Women with Disabilities (2003) 2 Journal of Law & Equality 16. 37 This emerging terminology is reflected in the ILOs Declaration on Fundamental Principles and Rights at Workand its Follow-up, adopted June 18, 1998, 37 I.L.M. 1233, online: International Labour Organization http://www.ilo.org/public/english/standards/decl/declaration/text/index.htm [ILO Declaration].

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the absence of an intent to discriminate. 38 Discrimination is understood as a systemic, pervasive and institutionalized phenomenon rather than simply an anomalous and aberrant incident perpetrated by a chauvinistic or racist individual in an otherwise fair world. The regulatory implications of this enlarged understanding of discrimination at work were outlined by Justice Rosalie Silberman Abella in her 1984 Royal Commission Report on Equality in Employment: Systemic discrimination requires systemic remedies. Rather than approaching discrimination from the perspective of the single perpetrator and the single victim, the systemic approach acknowledges that by and large the systems and practices we customarily and often unwittingly adopt may have an unjustifiably negative effect on certain groups in society. The effect of the system on the individual or group, rather than its attitudinal sources, governs whether or not a remedy is justified.39 The systemic remedies recommended by Justice Silberman Abella included the employment equity legislation subsequently adopted.40

Despite the trend towards more systemic regulatory approaches at the interface of human rights and labour law, the Canada Labour Code provisions on sexual harassment still primarily replicate traditional adjudicative approaches, albeit in an informal employer forum.41 One of the key components of the required employer policies is an individual complaint mechanism in the wake of incidents of harassment a process that results in
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See Rosalie Silberman Abella, Equality in Employment - A Royal Commission Report (Ottawa: Ministry of Supply and Services, 1984) [Abella Report]. Recognition of adverse effects discrimination by the Supreme Court of Canada emerged in Ontario Human Rights Commission and O'Malley v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536. Systemic discrimination was acknowledged in CN Rail, supra note 13. 39 Abella Report, supra note 35 at 9. 40 Ibid. Although the Abella Report is most often remembered for its recommendations regarding employment equity, her recommendation also included far reaching educational and training initiatives, pay equity (as an integral dimension of employment equity) and child care. For a discussion, see Colleen Sheppard, Rethinking the Boundaries of Workplace Discrimination (paper presented to the NAALC Workplace Discrimination Seminar, University of George Washington, December 2004) [on file with author]. 41 This replication of formal legal processes within informal employer settings parallels in some ways the tendency for informal labour law dispute resolution processes to become increasingly legalistic. For a critique of the legalization of informal labour law processes, see Harry Arthurs, The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration (1999) 7 Can. Lab. & Emp. L.J. 45. For a response, see Michel Coutu, Industrial Citizenship, Human Rights and the Transformation of Labour Law: A Critical Assessment of Harry Arthurs Legalization Thesis (2004) 19 Canadian J. of Law & Soc. 73 [Coutu].

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the potential disciplining of harassers. In this regard, the proactive policies replicate the individual, retroactive and command and control aspects of traditional human rights law.42 Compliance with the current provisions is effected simply by circulating a policy outlining the kinds of individual conduct that are prohibited and the risks of discipline in the face of violation. They do not require a proactive review of structural or systemic sources of vulnerability to sexual harassment. Were a more systemic approach adopted, the proactive prevention of sexual harassment would engage employers in transforming a wide range of institutional practices and policies.43 Possible strategies which have been identified as important for reducing institutional vulnerability to sexual harassment include: (1) ensuring that women in non-traditional jobs are not isolated in all-male work groups, and that there is a critical mass of women employed in areas once exclusively the domain of men; (2) addressing the isolation of women in traditionally female jobs, such as domestic work, and reforming legislative or policy provisions that accentuate their isolation; (3) confronting the connections between sexism, racism and other types of inequality; (4) identifying how both male and female jobs are sexualized, and dismantling the stereotypes, sexual subordination, racism, and heterosexism of the phenomenon of sexualization; (5) implementing employment equity effectively to provide equal employment opportunities for women and other underrepresented and socially disadvantaged groups; and (6) developing more democratic workplaces that are not premised on abusive supervisory power, but rather on more egalitarian, cooperative, and teambased approaches to work.44 A concern with these larger systemic and structural workplace issues is premised on the view that sexual harassment is integrally connected to larger questions of inequality and discrimination in the workplace. Whether labour standards on sexual harassment provisions should require more direct consideration of these larger related questions of structural and systemic inequality is an important issue. It raises the further question of whether labour standards laws should address other issues of inequality and discrimination in the workplace. The extent to which labour standards reform should
42

See Sheppard, supra note 7. On the command and control approach to legal regulation, see David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) [Garland]. See also Colleen Sheppard, The Promise and Practice of Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms in N. Kasirer & R. MacDonald, eds., Mlanges Paul-Andr Crpeau (Cowansville, Quebec: Yvon Blais, 1997) [Promise and Practice]. 43 For an analysis of recurrent structural and systemic factors, see Sheppard, supra note 7. 44 Ibid. at 286.

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mandate employer policies that address discrimination more generally is dealt with below in Part 3. Before turning to this question, it is important to consider whether, at a minimum, the labour standards provisions on harassment should be extended to other types of grounds-based harassment.

2. BEYOND SEXUAL HARASSMENT: EMERGING RECOGNITION OF GROUNDSBASED HARASSMENT The current harassment provisions in the Canada Labour Code are expressly limited to sexual harassment in the workplace. In contrast, the Canadian Human Rights Act and human rights legislation across the country prohibit harassment based on all of the protected grounds of discrimination.45 What explains this disjuncture? The most persuasive explanation is linked to the fact that sexual harassment, as opposed to other forms of harassment, was the most prevalent social concern in the late 1970s and early 1980s when the sexual harassment provisions were added to the Canada Labour Code. Indeed, employer policies on harassment, until relatively recently, have tended to focus exclusively on sexual harassment. It was not until somewhat later that the harms of racial harassment, disability-based harassment and harassment on the basis of sexual orientation were more forcefully articulated.46 While early employer policies focused on sexual harassment, a more comprehensive approach is now emerging.47

One preliminary concern about limiting protection to sexual harassment is the way in which the category itself risks reducing more complex human, institutional and relational problems of harassment to gender alone. For example, in her article Disappearing

45 46

Supra note 4, s. 3. In this study, I highlight racial and disability harassment as two examples of grounds-based harassment not currently covered in the Canada Labour Code provisions. The current provisions on sexual harassment do already provide protection for same sex harassment: see Janzen, supra note 9 at para. 57, quoting M.A. Hickling, Employers Liability for Sexual Harassment (1988) 17 Man. L. J. 124 at 127. See also, for example, Janine Benedet, Same-Sex Sexual Harassment in Employment (2000) 26 Queens L.J. 101; & Arjun Aggarwal & Madha M. Gupta, Same-Sex Sexual Harassment: Is it Sex Discrimination? A Review of Canadian and American Law (2000) 27 Manitoba Law Journal 333. 47 See, for example, Canadian Human Rights Commission, Anti-harassment Policies for the Workplace: Employer's Guide, online: Canadian Human Rights Commission http://www.chrcccdp.ca/publications/anti_harassment_toc-en.asp.

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Women: Racial Minority Women in Human Rights Cases, Nitya Duclos (Iyer) highlights the importance of understanding how race and gender are inextricably linked: Stereotypes which combine race and gender are common to everyday experience. Race and gender are equally apparent and, together with other visible characteristics, are likely to form part of our initial generalizations about people. It is only when one becomes immersed in the world of law that race and gender are extracted from the whole person and become mutually exclusive categories of discrimination.48 Applying this concern to sexual harassment cases, Iyer notes that there are likely to be differences between situations where a white man sexually harasses a white woman and those where a white man harasses a racial minority woman, or where the harasser is nonwhite but the complainant is, or again, where neither party is white and they belong to the same or different minority groups.49 While it is possible and important to insist that racial and other types of inequalities be incorporated into legal understandings of sexual harassment, more inclusive categories may ensure more expansive thinking about the realities of intersecting inequalities and harassment.50 Moreover, in situations where there is no gender dimension to the harassment, other forms of discriminatory harassment will not be addressed. Thus, beyond the intersectionality critique, there has been a growing concern that other forms of harassment should be recognized.

One critically important form of grounds-based harassment is racial harassment. In his comprehensive article, Racial Harassment in the Workplace: Evolving Approaches,51 Ian Mackenzie emphasizes the way in which racial harassment undermines human

48

(1993) 6 CJWL 25 at 33 [Disappearing Women]. See also Nitya Iyer, Categorical Denials: Equality Rights and the Shaping of Social Identity (1993) 19 Queen's L.J. 179; & Kimberl Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics (1989) 89 Univ. of Chicago Leg. Forum 139. 49 Disappearing Women, ibid. at 34. 50 The shift to a focus on psychological harassment avoids this difficulty by moving away from a groupbased approach. Some scholars, however, are concerned that such a shift reduces attentiveness to realities of racism and sexism. See discussion in Debra Parkes, Introduction to the Symposium on Workplace Bullying: Targeting Workplace Harassment in Quebec: On Exploring a New Legislative Agenda (2004) 8 Empl. Rts. & Employ. Poly 423 [Parkes]. 51 (1995) 3 Can.Lab. & Emp. L.J. 287 [Mackenzie]. Racial harassment cases have also implicated the mistreatment of Aboriginal persons in the workplace. On racism and Aboriginality, see Patricia Monture, "Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah" (1986) 2 CJWL 159.

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dignity and feelings of self-worth. As recognized in Hinds v. Canada,52 a case involving a racial slur, The effect of this kind of racial slur can never adequately be understood by anyone who has not experienced it first hand. It strips away a persons dignity and destroys his sense of self-worth in a way that may be irreparable this offensive act seriously affected his self-respect and went to the core of his very well-being.53 Mackenzie maintains that there are significant problems of underreporting of racial discrimination and legitimate fear of reprisals should employees complain of racial abuse. With respect to the former, he notes that racialized immigrants are afraid, or feel they cannot win, or are ignorant of their rights under the law.54 Racial prejudice and abuse is so pervasive it almost appears to be a natural phenomenon, and is becoming a normal social experience. 55 With respect to the fear of reprisals, he maintains that there is a low probability of race-based complaints being resolved in the complainants favour and a higher likelihood of such complaints leading to the discipline, discharge or quitting of the complainant.56 Moreover, the jurisprudence on racial harassment reveals considerable evidentiary difficulties in proving race-based harassment in the absence of clear evidence of intent.57 Relief often seems to be available only in the most egregious cases where intentional discrimination is obvious. Instead of focusing on the intent of the perpetrator, Mackenzie advocates an effects-based approach, informed by the lived experiences of victims of racism.58

52

Hinds v. Canada (Employment & Immigration Comm.), (1988) 24 C.C.E.L. 64 (Canadian Human Rights Trib., Lederman). 53 Ibid. at 82, as quoted in Mackenzie, supra note 51 at 290. 54 Mackenzie, ibid. at 291. For a recent case involving racial harassment and discrimination, see Commission des droits de la personne c. Centre maraicher Eugne Guinois Jr Inc. April 14, 2005, 760-53000001-048, Tribunal des droits de la personne du Qubec [Centre maraicher]. 55 Ibid. at 291-292. On the pervasiveness of racism, see Himani Bannerji, Introducing Racism: Notes Towards an Anti-racist Feminism (1987) 16 Resources for Feminist Research 10. See also C. Agocs & H.J. Michael, Systemic Racism in Employment in Canada: Diagnosing Systemic Racism in Organizational Culture (Toronto: Canadian Race Relations Foundation, 2001) [Systemic Racism]. 56 Systemic Racism, ibid. at 292. 57 For a review of the jurisprudence, see Mackenzie, supra note 51 at 294-310. For a recent example of a case where the individual did not succeed in a racial harassment complaint, see Jean-Luc Morin & Canadian Human Rights Commission v. Attorney General of Canada, 2005 CHRT 41, 2005-10-14. 58 MacKenzie, ibid at 288.

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One racialized group that is particularly vulnerable to harassment is migrant workers. Despite significant federal government involvement regulating the conditions of entry into Canada for migrant workers, such as foreign domestic workers or agricultural farm workers, these workers are subjected to provincial labour standards.59 They often experience discrimination in their working conditions, are excluded from certain protections in provincial labour standards and collective bargaining law, and are at greater risk of psychological, sexual and racial harassment.60 To address the harassment concerns facing these workers, the limits of federal jurisdiction with respect to migrant workers would have to be re-examined and innovative protective regimes developed.

As in the case of sexual harassment, one of the recurrent themes in the jurisprudence and scholarship on racial harassment is the importance of the employers response to a workplace incident involving, for example, racial slurs. The initial harm and affront to human dignity risks being severely aggravated if the employer fails to respond or take the incident seriously. The experience of marginalization and isolation intensifies. An effective, equitable and prompt response by employers can help the healing process in the wake of an experience of harassment. Thus, Mackenzie concludes by emphasizing: Tearing down barriers between cultures and creating non-prejudiced work environments require forward looking and seeking to prevent abuse One way of achieving these remedial objectives is to impose an obligation on employers to monitor and remedy abusive environments By imposing a high standard on employers effective solutions are more apt to develop.61 Another area where problems of harassment have been identified is with respect to persons with disabilities. In the Canadian context, it is important to note that persons with disabilities have experienced little progress pursuant to employment equity

For a succinct review of migrant workers rights in Canada, see Commission for Labor Cooperation, Foreign Workers Guide to Labor and Employment Laws for Migrant Workers in Canada. See generally, Patrick A. Taran & Eduardo Geronimi, Globalization, Labour and Migration: Protection is Paramount(Geneva: International Migration Programme, International Labour Office, 2003). 60 For a powerful account of the risks of sexual harassment faced by foreign domestic workers, see Makeda Silvera, Silenced - Talks with Working Class Caribbean Women about their Lives and Struggles as Domestic Workers in Canada, 2d ed. (Toronto: Sister Vision, 1989) at 55-56; see also Centre Maraicher, supra note 54 (entailed harassment of racialized Canadian workers and migrant farm workers). 61 Mackenzie, supra note 51 at 310.

59

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legislation.62 While there are numerous complaints of disability-related discrimination, very little has been written in Canada about harassment based on physical and mental disability. There are a number of articles in the US context discussing the extent to which disability-based harassment is prohibited by the Americans with Disabilities Act.63 Academic scholarship in Canada on disability discrimination nevertheless provides important insights into the institutional dynamics of exclusion that are directly relevant to harassment. In her article Miles to Go: Some Personal Reflections on the Social Construction of Disability, Dianne Pothier begins by stating The greatest handicap I face as a disabled person is not physical limitations occasioned by the poor eyesight, but rather the attitude of others toward my disability.64 She further comments: My experience is that, compared to racism and sexism, there is farther to go in even acknowledging the problem of systemic discrimination based on disability. I do not think it is an accident that the English language has developed the words racism and sexism, but has no comparable word for disability.65 Recounting her experience as a law student, job applicant and law professor, Pothier outlines three syndromes linked to the social construction of disability. These include: The syndrome of your discomfort with my difference becomes my problem, The syndrome of assessing the ability of the disabled from an able bodied frame of reference, and The syndrome of well accommodate your disability by imposing an undue burden on someone else.66

What are the implications for labour standards of human rights recognition of harassment based on other grounds?67 Do the same justifications for including a proactive employer

Carol Agocs, Canadas Employment Equity Legislation and Policy, 1986-2000: Unfulfilled Promises in Carol Agocs, ed., Workplace Equality: International Perspectives on Legislation, Policy, and Practice (New York: Kluwer Law International, 2002) [Workplace Equality]. 63 Pub.L.101-336, codified at 42 U.S.C. 12101 et seq. See also, for example, Sharlott K. Thompson, Hostile Work Environment Disability Harassment Under the ADA (2005) 73 UMKC Law Review 715; & Mark C. Weber, Workplace Harassment Claims Under the Americans with Disabilities Act: A New Interpretation (2003) 14 Stan L & Poly Rev. 241 [Weber]. 64 (1992) 14 Dalhousie L.J. 526 at 526. 65 Ibid. at 543. 66 Ibid. at 530, 535 & 537. For a useful postmodern discussion of the social construction approach, see Shelley Tremain, On the Subject of Impairment in Mairian Corker & Tom Shakespeare, eds., Disability/Postmodernity: Embodying Disability Theory (New York: Continuum, 2002) at 32. 67 While it is beyond the scope of this paper to review all the potential manifestations of grounds-based harassment, suffice it to say that all of the other grounds of discrimination enumerated in human rights

62

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policy obligation and an internal complaint process for sexual harassment apply to other types of discriminatory harassment at work? Should the current provisions be expanded to cover other forms of harassment, thereby making them consistent with human rights obligations? From an employers perspective, extending the obligation for employer policies to other types of harassment in the Canada Labour Code may appear onerous or undesirable. However, upon further reflection, harassment policies and processes are designed to address problems quickly and internally, thereby avoiding the risk of more formalized legal complaints pursuant to human rights legislation. Moreover, pursuant to current human rights law, employers already have a legal obligation to take reasonable steps to secure a workplace free of discriminatory harassment. The labour standards provisions on employer obligations regarding harassment policies should be consistent with the scope of human rights protection. In the context of growing recognition of workplace harassment, linked to multiple and often overlapping grounds, and given the expanded scope of protection in human rights legislation, it would seem logical to extend the harassment provisions in the Canada Labour Code. A more inclusive approach would extend employer obligations for setting up an internal workplace policy on harassment to all of the human rights based grounds of harassment. Indeed, in light of the obligation to secure equal benefit of the law under s. 15 of the Canadian Charter of Rights and Freedoms, an inclusive approach may well be understood as a constitutional imperative.68

3. WORKPLACE EQUALITY AND LABOUR STANDARDS There is another important question linked to the interface of human rights and labour standards legislation: should labour standards require proactive employer policies to address not just harassment, but the full range of workplace equality issues? In thinking about equality and discrimination more generally, it is important to begin by assessing the

legislation may also be raised in harassment contexts. For a useful review, see Bernard Clich et al., Le harclement et les lesions psychologiques (Cowansville: Yvon Blais, 2005) [Clich] at 220-246. 68 In the wake of Vriend v. Alberta, [1998] 1 S.C.R. 493, legislation may violate constitutional equality rights by excluding groups who should be protected pursuant to human rights norms. Thus, the failure to include other types of discriminatory harassment in the Canada Labour Code is arguably constitutionally underinclusive and therefore discriminatory.

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scope and significance of the Employment Equity Act.69 To what extent does it already impose proactive employer obligations for securing equality in the federally regulated workplace, such that expanding labour standards in this regard would be redundant? One initial limitation in the Employment Equity Act is its exclusive focus on four designated groups, meaning that other types of inequality are not addressed by this legislative initiative. It is also only applicable to employers with over 100 employees.70 Nonetheless, the stated purpose of the Employment Equity Act is to: correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences. 71 To achieve this purpose, employers are required to establish employment equity plans. 5. Every employer shall implement employment equity by (a) identifying and eliminating employment barriers against persons in designated groups that result from the employer's employment systems, policies and practices that are not authorized by law; and (b) instituting such positive policies and practices and making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation in (i) the Canadian workforce, or (ii) those segments of the Canadian workforce that are identifiable by qualification, eligibility or geography and from which the employer may reasonably be expected to draw employees.

Because problems of harassment and discriminatory working conditions on the job are critical to retaining individuals from underrepresented groups, they should arguably be integral to employer initiatives to on employment equity. It would seem that a general employer policy on harassment and discrimination would be consistent with and

69 70

Employment Equity Act, supra note 34, s. 2. See also Workplace Equality, supra note 34. Employment Equity Act, ibid., s. 3, under definition of private sector employer. 71 Ibid., s. 2.

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complementary to employment equity objectives. However, employment equity has tended to focus almost exclusively on hiring and promotion in existing workplace structures rather than embracing a larger systemic project of revising workplace cultures, standards or norms.72

Another important legal development regarding equality in the workplace is the Supreme Court of Canadas decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU.73 In upholding a grievance arbitrators conclusion that an aerobic standard for forest firefighters discriminated against women, the Supreme Court emphasized that: Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible.74

Critical to the task of building conceptions of equality into workplace standards is consultation and collaboration with the employees most affected by workplace policies and practices. Citing the important work of David Lepofsky in this regard, McLachlin J. affirmed the procedural and substantive dimensions of an employers duty to accommodate.75

What are the implications of these legal developments in thinking about reform and federal labour standards?76
72

One potential reform initiative is the expansion of the labour

Workplace Equality, supra note 34; & Colleen Sheppard, Challenging Systemic Racism: Affirmative Action and Equity for Racialized Communities and Aboriginal Peoples in Canada (on file with author). 73 [1999] 2 S.C.R. 3 [Meiorin]. 74 Ibid. at para. 68 (emphasis added). 75 David Lepofsky, Duty to Accommodate: A Purposive Approach (1992) 1 Can. Labour L. J. 1. 76 It is noteworthy that the Canadian Labour Congress recommended in its brief to the Task Force that all of the human rights standards be incorporated into the labour standards provisions i.e. the basic protections against discrimination and harassment; see Federal Labour Standards Review Task Force, Modernizing Federal Labour Standards: Review of Part III of the Canada Labour Code (Consultation Paper) (2005),

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standards section on sexual harassment to require employers to develop general policies on equity in the workplace, while still leaving the processing of any individual complaints of harassment or discrimination to the processes set up under human rights legislation. Requiring employers to develop and to communicate a general policy of nondiscrimination and non-harassment is, arguably, already part of an employers obligations, as interpreted by the courts.77 What is more controversial, and addressed in Part 5, is whether a separate labour standards complaint procedure should be set up to deal with harassment and discrimination issues a kind of parallel system equivalent to grievance arbitration for the non-unionized employee. Additionally, the current sexual harassment provisions require only minimal consultation with employees. The possibility of proposing a more participatory structure for addressing human rights issues in the workplace something more akin to the health and safety structures is also addressed below. Before turning to these questions, however, there is a further potential substantive addition to the harassment provisions that deserves consideration: psychological harassment.

4. PSYCHOLOGICAL HARASSMENT: A NEW LABOUR STANDARD AND A NEW HUMAN RIGHT In June 2004, Quebec became the first North American jurisdiction to introduce an innovative new provision into its labour standards law a general prohibition of psychological harassment in the workplace. The Quebec Labour Standards Act provides: Every employee has a right to a work environment free from psychological harassment. Employers must take reasonable action to prevent psychological

online: Government of Canada http://www.fls-ntf.gc.ca/en/consrpt-doccons.asp. One might also argue that such a regime would provide parallel protection to what is currently provided to unionized workers, who can seek human rights redress through the grievance arbitration process since human rights standards have effectively been written into all collective agreements. 77 See Robichaud, supra note 19 and Meiorin, supra note 73.

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harassment and, whenever they become aware of such behaviour, to put a stop to it.78 The legislation defines psychological harassment as: any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employees dignity or psychological or physical integrity and that results in a harmful work environment for the employee. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.79 Various options exist for different groups of employees. Unionized employees may file a grievance since the legislation reads protection against psychological harassment into all collective agreements regulated pursuant to Quebec labour law.80 Non-unionized employees may file complaints with the Labour Standards Commission, which is then required to investigate the complaint. If no settlement is reached between the parties, the complaint may be referred to the Commission des relations du travail (similar to a labour board) for adjudication.81 Public service employees not governed by a collective agreement, including members and heads of agencies, file complaints with the Public Services Commission.82 One concern which has been raised is the relatively short 90-day time limit for filing complaints.83 Nevertheless, the new protections are being used fairly extensively, although it is still too early to do a comprehensive assessment of the new law. As of June 2005, one year following the coming into force of the new law, the Labour Standards Commission reported that it had received 2500 complaints of psychological harassment, and that less than 1 per cent of these complaints were considered frivolous.84

78 79

Act Respecting Labour Standards, R.S.Q. c. N-1.1, ss. 81.18-81.20 and 123.6-123.16. Ibid. s. 81.18. 80 Ibid. s. 81.20. 81 Ibid. s. 123.4 and 123.12. 82 Ibid. s. 81.20. 83 See Katherine Lippel, Professeur de droit, Facult de science politique et de droit, Universit du Qubec Montral, Mmoire prsent la Commission parlementaire sur le projet de loi 143 Les dispositions relatives au harclement psychologique au travail, at 5 (on file with author) [Mmoire sur la loi 143]. 84 M.-A. Chouinard, Chaque jour, dix personnes portent plainte pour harclement psychologique Le Devoir (June 10, 2005) A-2.

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Remedies for violation of the provisions on psychological harassment include the following: (1) ordering the employer to reinstate the employee; (2) ordering the employer to pay the employee an indemnity up to a maximum equivalent to wages lost; (3) ordering the employer to take reasonable action to put a stop to the harassment; (4) ordering the employer to pay punitive and moral damages to the employee; (5) ordering the employer to pay the employee an indemnity for loss of employment; (6) ordering the employer to pay for the psychological support needed by the employee for a reasonable period of time as determined by the Commission; (7) ordering the modification of the disciplinary record of the employee.85 The legislation contemplates comprehensive and effective remedies. It is important to note, however, that in cases where the psychological harassment results in illness, the monetary remedies set out in (2), (4) and (6) are more limited. In such cases, the no-fault workers compensation provisions for monetary compensation are to be invoked; however the arbitrator may still adjudicate any non-monetary issues. In the domain of sexual harassment, where there is a parallel overlap between workers compensation and human rights with respect to harassment laws, there has been concern that limiting redress to the occupational health and safety domain risks under-compensating harassment victims.86

As in the case of any labour law reform, given the bifurcated jurisdictional structure, only those employees working in provincially regulated workplaces benefit from these new protections. Employees in federally regulated workplaces do not enjoy similar protection against psychological harassment at the present time. This jurisdictional inequality is one policy concern that those engaged in law reform must assess.87 It is not the first time that
85 86

Supra note 82, s. 123. See Diane Demers & Katherine Lippel, Access to Justice for Sexual Harassment Victims: The Impact of Bliveau St-Jacques on Female Workers' Right to Damages (Ottawa: Status of Women Canada, 1998) [Demers & Lippel]. For a review of the treatment of psychological harassment as an occupation injury, see Katherine Lippel, Le harclement psychologique au travail: portrait des recours juridiques au Qubec et des dcisions rendues par la Commission des lsions professionnelles Revue Pistes (2005) 7 Revue Pistes, online: Revue Pistes http://www.pistes.uqam.ca/v7n3/articles/v7n3a13.htm. [Lippel]. See also Clich et al., supra note 67 at ch. 1. 87 A Private Members Bill was introduced to try to fill this regulatory gap: see Bill C-360, An Act to

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provincial labour standards have offered greater protection than federal standards and with respect to minimum wages, the provincial and federal provisions are expressly aligned. In the sphere of employment regulation, however, the Supreme Court has generally applied the doctrine of interjurisdictional immunity to insulate federally regulated enterprises from provincial labour standards.88 The deregulatory consequences of an exclusive spheres of jurisdiction approach to federalism have been raised,89 and in some domains, there has been a willingness to allow for concurrent and overlapping jurisdiction.90 With respect to labour law, however, the doctrine of interjurisdictional immunity means that provincial labour standards are not (pursuant to existing jurisprudence) applied to federally regulated enterprises.

A critical starting point in examining psychological harassment is an understanding of its meaning.91 What constitutes psychological harassment at work? To what extent are existing protections against grounds-based harassment in human rights legislation contained within the new psychological harassment labour standard? Must there be a malicious intent on the part of the perpetrator(s) of psychological harassment? How does psychological harassment differ from employee discipline or certain management techniques? What degree or type of harm must be caused by the psychological

prevent psychological harassment in the workplace and to amend the Canada Labour Code, 1st Sess., 38th Parl., 2005. 88 See Commission de la Sant et de la Scurit du Travail v. Bell Canada (Bell #2), [1988] 1 SCR 749 (non-applicability of provincial labour standard entitling pregnant employees to a protective reassignment); Alltrans Express Ltd. v. British Columbia (Workers Compensation Board), [1988] 1 SCR 897 (nonapplicability of safety boot requirement to federally-regulated enterprises); & Canadian National Railway Co. v. Courtois, [1988] 1 SCR 868 (provincial accident inspector not entitled to inquire into a railway accident that caused death and serious injury to workers). Note, however, that provincial workers compensation regimes do apply federally a consideration of particular significance with respect to regulation of psychological harassment: see Workmens Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184 (P.C.). 89 See, for example, Bruce Ryder, The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations (1991) 36 McGill L.J. 309 at 38081. 90 See, for example, R. v. Canadian Pacific Ltd., [1995] 2 SCR 1031 (finding provincial environmental regulations applicable to a federally-regulated enterprise). Similarly in Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927, provincial prohibitions on child advertising were held applicable to federally-regulated broadcasters. 91 There is a growing body of academic scholarship on psychological harassment in numerous countries; see bibliographic references. The interpretation of psychological harassment has been informed predominantly by earlier jurisprudence on grounds-based harassment, particularly sexual harassment.

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harassment? What are an employers obligations in the face of a situation of psychological harassment?

The Quebec government was attentive to the need for precision in defining the scope and meaning of its new provisions on psychological harassment and the website of the Labour Standards Commission is a useful tool in this regard, providing succinct answers to some of the questions set out above.92 It explains the term vexatious behaviour as follows: It is humiliating or abusive behaviour that lowers a persons self-esteem or causes him [or her] torment. It is also behaviour that exceeds what the person considers to be appropriate and reasonable in the performance of his [or her] work.93 Despite the risk that use of the adjective vexatious might appear to import an intent requirement, most commentators maintain that the existence of psychological harassment is determined by the effects on the victim in experiencing harassment rather than on the intent of the perpetrator.94

Noting that psychological harassment may result from the acts of a superior, a colleague, a group of colleagues, a customer, or a supplier, the Labour Standards Commission enumerates a number of examples of how harassment is expressed:

Making rude, degrading or offensive remarks. Making gestures that seek to intimidate, engaging in reprisals. Discrediting the person: spreading rumours, ridiculing him [or her], humiliating him [or her], calling into question his [or her] convictions or his [or her] private life, shouting abuse at him [or her], or sexually harassing him [or her]. Belittling the person: forcing him [or her] to perform tasks that are belittling or below his [or her] skills, simulating professional misconduct.

92 93

See online: Commission des normes du travail http://www.cnt.gouv.qc.ca. Ibid. The second paragraph of the definition appears very broad and subjective; however, it is constrained by the other statutory components of the definition of psychological harassment. 94 See Parkes, supra note 50 at 435.

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Preventing the person from expressing himself [or herself]: yelling at him [or her], threatening him [or her], constantly interrupting him [or her], prohibiting him [or her] from speaking to others. Isolating the person: no longer talking to him [or her] at all, denying his [or her] presence, distancing him [or her] from others. Destabilizing the person: making fun of his [or her] convictions, his [or her] tastes and his [or her] political choices.95

The statutory definition itself also affirms harassment that undermines either the psychological or physical integrity of an employee. Despite this fairly expansive list of harassing behaviour, the Commission is careful to note that psychological harassment must not be confused with the normal exercise of the employers management rights, in particular his right to assign tasks and his right to reprimand or impose disciplinary sanctions.96 Employers do, however, have an obligation to take reasonable steps to prevent psychological harassment and to put a stop to such behaviour when they find out about it.97

The potential for overlap with human rights definitions of grounds-based harassment is openly acknowledged. In effect, given the breadth of the definition of psychological harassment in the Quebec legislation, all problems of grounds-based harassment, currently protected in human rights legislation, would also constitute problems of psychological harassment. This was explicitly acknowledged in an inter-ministerial government report that informed the subsequent reform of the labour standards.98 In cases where psychological harassment also constitutes a form of grounds-based harassment, employees have a choice of pursuing a human rights complaint or complaining through the labour standards process.99

95 96

Supra note 92. Ibid. 97 Ibid. 98 Quebec, Ministre du travail, Rapport du Comit interministriel sur le harclement psychologique au travail (2001), online: Ministre du travail http://www.travail.gouv.qc.ca/actualite/harcelement_psychologique/comite_hpsy.pdf. 99 This option is subject to the requirement that the occupational health and safety provisions be invoked; see discussion in Parkes, supra note 50, on the conceptual overlap between grounds-based and psychological harassment.

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To understand developments on psychological harassment, it is helpful to look at regulatory initiatives in Europe, for Quebec has not been is not alone in introducing explicit protections against psychological harassment in the workplace. Sweden, France and most recently Belgium all have specific legislative provisions prohibiting forms of psychological harassment in the workplace, though the terminology differs across countries.100 It is interesting to note at the outset that the law reform initiatives in Europe were prompted by significant sociological and psychological studies about bullying, mobbing and moral harassment in the workplace.101

In Sweden, psychologist Heinz Leymann published a number of important studies, beginning in the 1980s, on what he called mobbing in the workplace.102 Leymann enumerated a number of acts, which may be perpetrated by one or more persons, which constitute mobbing when they recur (over half a year and at least once a week): Attacks on the possibility of expressing oneself; Attacks on social relations; Effects on social reputation; Attacks on quality of occupation and life; Physical attacks with an impact on the health of individuals.103

The emphasis in Leymanns work is on extreme and repetitive abuse that is exacerbated over time.104

Legislation also exists in the UK, but it is not workplace-specific. Indeed, the work of sociologist Angelo Soares has been influential in Quebec; see Angelo Soares, Bullying: When Work becomes Indecent (Montreal, 2002), online: Centrale des syndicats du Qubec http://www.csq.qc.net/eav/violence/harcelem.pdf. 102 See Heinz Leymann, The Content and Development of Mobbing at Work (1996) 5 Eur. J. Work & Organization Psychol. 165 (citing early studies conducted with B. Gustavsson). For a useful overview of European developments, see Maria Isabel S. Guerrero, The Development of Moral Harassment (or Mobbing) Law in Sweden and France as a Step toward EU Legislation (2004) 27 B.C. Intl. Comp. L. Rev. 477 at 479 and footnote 11 [Guerrero]. See also Noa Davenport et al., Mobbing: Emotional Abuse in the American Workplace (1999) European Parliament Working Paper: Bullying at Work, Social Affairs Series, SOCI 108 En. at 8. 103 For the full description of each of these dimensions of mobbing, see Frank Lorho & Ulrich Hilp, Bullying at Work (Working Paper) (Luxembourg: European Parliament, 2001), online: European Parliament http://www.europarl.eu.int/workingpapers/soci/pdf/108_en.pdf at 8-9 [Lorho]. 104 Leyman uses terms such as psychoterrorism and mobbing rather than bullying, which he suggests should be used in contexts involving school children.
101

100

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The Swedish legislature was the first to respond to growing recognition of the problem of psychological abuse and violence in the workplace. In 1993, it enacted the Ordinance on Victimization at Work105 and required employers to endeavour to prevent workplace mobbing and to put systems in place for identifying and investigating problems of psychological harassment and helping employees who have been victimized.106 Employers are also directed to examine the organization of the workplace as a possible contributor to workplace violence. The Swedish National Board of Occupational Safety and Health has assumed a leadership role in providing employer guidelines for implementing the Ordinance. Victimization is defined in the Ordinance as recurrent reprehensible or distinctly negative actions, which are directed against individual employees.107 The repetitive dimension of mobbing is reinforced by this definition, unlike the explicit acknowledgement in the Quebec legislation that a single serious act may constitute psychological harassment.108

In France, two influential books by psychologist Marie-France Hirigoyen prompted public debate about what is referred to as moral (rather than psychological) harassment. Her first book, published in 1998, Le harclement moral, la violence perverse au quotidien,109 gave a name to the social reality of emotional and psychological violence at work. The English translation of the book, Stalking the Soul: Emotional Abuse and the Erosion of Identity,110 uses the term emotional abuse rather than moral harassment. Taken together, the titles convey the key dimensions of the social problem Hirigoyen sought to publicize the perversity of violence in everyday life, the effects on ones moral, emotional and spiritual well being, and the erosion (over time) of an individuals sense of self-respect, identity and competence. Her second book, Malaise dans le travail: harclement moral, dmler le vrai du faux,111 provided further insights into the meaning and implications of moral harassment at work. According to Hirigoyen, moral
(AFS 1993:17). The absence of procedural mechanisms for launching individual complaints is noteworthy and discussed further, infra. It parallels the current provisions on sexual harassment in the Canada Labour Code. 107 Supra note 105, s. 1. 108 Supra note 78, s. 81.18. 109 (Paris: Syros, 1998). 110 (New York: Helen Marx Books, 2000). 111 (Paris: Syros, 2001) [Malaise].
106 105

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harassment involves the assertion of psychological dominance over another individual in the workplace, so as to undermine the psychological and physical integrity of the individual, ultimately poisoning workplace relationships.112 For Hirigoyen, moral harassment is an intentional act directed against an individual by another individual within the workplace that is designed to humiliate or undermine the individuals sense of self-respect and well being, resulting in a loss of identity. She is careful to distinguish moral harassment from the tyrannical behaviour of managers, who pressure all of their subordinates, sometimes violently, with insults or a lack of respect. 113 Moral harassment involves the targeting of an individual, rather than general poor management practices. Similarly, systemic problems or generally shared difficult working conditions would not constitute moral harassment because they would not be directed at a particular individual. This focus on the individual dimensions of workplace abuse diverges from the organisational emphasis in the Swedish Ordinance. The exclusion of individuals from outside the workplace as sources of moral harassment again reduces the scope of what is protected in the French context. Indeed, some commentators have suggested that the individualistic dimensions of moral harassment resonate with the French resistance to the legal protections against group-based discrimination at the heart of North American sexual and racial harassment laws.114 The focus is on safeguarding individual dignity rather than group-based equality rights has been critiqued by some for the risk that it may render problems such as sexism and racism invisible.115

In 2002, France introduced the Social Modernization Law (Loi de modernisation sociale),116 which provides that: Aucun salari ne doit subir les agissements rpts de harclement moral qui ont pour objet ou pour effet une dgradation des conditions de travail susceptible de porter atteinte ses droits et sa dignit, daltrer sa sant physique ou mentale ou de compromettre son avenir professionnel.117
Ibid. Guerrero, supra note 102 at 484 (referencing Hirigoyen, Malaise, supra note 111 at 22). 114 See discussion in Gabrielle S. Friedman & James Q. Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity (2003) 9 Colum. J. Eur. L. 241. 115 Parkes, supra note 50. 116 Loi n 2002-73 du 17 janvier 2002 de modernisation sociale, J.O. 18 June 2002, 1008. 117 Art. L. 122-49 C. trav. See also M. Graser et. al, Legislative recognition in France of Psychological Harassment at Work (2003) 22 Med. & L. 239 at 242-3.
113 112

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It is interesting that the provision explicitly acknowledges that moral harassment can arise in the absence of intent, based on its effects on the victim, despite Hirigoyens suggestion to the contrary. The parallel provisions included in the Penal Code do require intent to engage in moral harassment.118 Despite the potential for a more effects-based approach to harassment at work, it has been suggested that the French model focuses both on individual wrongdoing and on the individual experience of harm.119

Beyond Sweden and France, Belgium has also introduced specific legislation that addresses sexual harassment, moral harassment and violence at work.120 It puts a particular focus on prevention and mediation when problems do arise. In terms of prevention, every enterprise must have a specialized prevention adviser, approved in advance by the trade union representatives.121 Recourse to the labour inspectorate and the courts is also available.122 The legislation is also innovative in reversing the burden of proof to facilitate proving psychological harassment.123 An evaluation of the legislation, including both union and employer perspectives, was published in 2004.124 The following excerpt from the bipartite report reveals a divergence of views:

trade unions argue that there is a need to lower the threshold for access by complainants to the law's 'informal procedure' (the intervention of a person in a position of trust attempting to effect conciliation), in order to step up their protection. Although the employers do not question the importance of this informal procedure, they also stress the need to use traditional informal channels situated outside the strict legal framework; a 'trusted person' must be appointed in each enterprise, say the trade union representatives, and this person must be trained. The employers representatives say that the appointment of a person in a position of trust must be optional, and that conditions relating to training and experience are not really necessary;

Art. 222-33-2 C. pn. For a more systemic, institutionalized account of workplace problems, see P. Askenazy (2004) Les dsordres du travail: Enqute sur le nouveau productivisme (Paris: Seuil et la Rpublique des Ides, 2004) at 35-40. 120 Loi n B2059 du 11 juillet 2002 relative la protection contre la violence et le harclement moral ou sexuel au travail, M.B., 18 July 2002, 32501. 121 Anne Renaut, Moral Harassment: Work Organization to Blame?, online: International Labour Organization, Bureau for Workers Activities http://www.oit.org/public/english/dialogue/actrav/publ/133/1.pdf at 3. 122 Supra note 120, s. VI. 123 This was done in the first version of the French law, but subsequently revised. 124 The law was evaluated by the bipartite CNT/NAR in its Opinion No 1484 of June 2004, online: Conseil National du Travail http://www.cnt-nar.be/AVIS/avis-1484.pdf.
119

118

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the employers say that reversal of the burden of proof in cases of alleged harassment should only be mandatory if no prevention policy has been drawn up; and the employers believe the complainant's special protection against dismissal should be abolished if a complaint is deemed to be inadmissible or ill-founded, and that the period of protection in the event of a well-founded and admissible complaint should be reduced to six months. The employers representatives also think that special protection against dismissal for witnesses should be replaced by the protection of anonymity. Generally speaking, the trade union representatives call for the principles of the regulation to be maintained, while at the same time introducing some adjustments (in order to improve their application), while the employers representatives want the legislation to be substantially reviewed: they say it should contain fewer details so that, among other changes, resulting administrative burdens (e.g. the slow pace of the informal complaints procedure) may be reduced. They add that a more integrated approach to existing provisions and practices relating to prevention overall would also be more effective. However, the employers and the trade unions agree on the need to develop prevention further, even though they sometimes disagree on the means of doing so.125

Despite these somewhat predictable differences of opinion, there was a shared consensus regarding the importance of prevention a consensus emerging in virtually every jurisdiction where legislative initiatives have emerged.

Responses in most other countries do not take the form of specific legislation on psychological abuse in the workplace.126 The problem has nevertheless been addressed through other legal protections, most notably occupational health and safety regulations. To the extent that psychological harassment can be characterized as sexual, racial or other grounds-based harassment, it may be addressed in human rights code protections. When it results in dismissal or constructive dismissal, wrongful discharge or unjust dismissal provisions may be invoked. The creative construction of common law doctrines has also occurred in psychological harassment situations, such as the tort of the intentional infliction of emotional distress.127 Basic provisions in the Civil Code of Quebec also speak to dignity in the workplace.128 Furthermore, internal employer policies against
European Industrial Relations Observatory Online, 2004 Annual Review for Belgium, online: European Industrial Relations Observatory http://www.eiro.eurofound.eu.int/2005/01/feature/be0501301f.html. 126 See discussion in Lippel, supra note 86. See also L. Vogel, Harclement moral et lgislation Bulletin dinformation du Bureau Technique Syndical Europen pour la sant et la scurit No. 19-20; & Lorho, supra note 103 for a useful, though a somewhat dated overview of European developments. 127 For an overview of common law remedies, see Parkes, supra note 50 at 428-433. 128 See Art. 2087 C.C.Q., which provides: The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the
125

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harassment have increasingly been extended beyond sexual harassment to include other grounds-based harassment and psychological harassment.129 Collective agreements also increasingly include provisions dealing with psychological harassment.130

To date, the European Parliament has focused on the connection between well-being at work and health and safety rather than human rights. The European Parliament published a 2001 Working Paper, Bullying at Work, outlining various definitions of workplace bullying, the social, individual and economic consequences of workplace harassment, the legal situation in Member States, and possible measures to prevent and remedy the harms of bullying in the workplace.131 Pursuant to the Charter of Fundamental Rights of the European Union, every worker has the right to working conditions, which respect his [or her] health, safety and dignity.132 To date, there has not been an explicit directive on psychological harassment. Nevertheless, it has been suggested that basic protection against workplace bullying is implied or contained within the EU Safety and Health Framework Directive.133 While the language of the directive is broad enough to embrace workplace bullying as a health and safety issue, it has been suggested that a more specific directive addressing workplace harassment would be preferable.134 In September 2001, the European Parliament adopted a resolution calling for a uniform definition of bullying, and called for the development of effective prevention policies and the exchange of information.135 The Community Strategy on occupational health and safety for 20022006 also acknowledges the need for specific responses to promote well-being at work,
nature of the work to protect the health, safety and dignity of the employee. See discussions in R. Lafond & J. Provencher, Le harclement psychologique: tout ce que lemployeur doit savoir (Cowansville, Quebec: Yvon Blais, 2004). See also, Clich, supra note 86. 129 See, for example Canada, Department of Justice, Towards a Workplace Free of Conflict and Harassment (Departmental Policy) (2001), online: Department of Justice Canada http://www.justice.gc.ca/en/dept/pub/harassment/harassment.html. 130 See, for example, Canadian Automobile Workers, CAW Equality Initiatives, CAW 20th Anniversary Collective Bargaining Conference, online: http://www.caw.ca/whatwedo/bargaining/cbpac/pdf/Chapter12.pdf . 131 Lorho, supra note 103. 132 See article 31(1) Charter of Fundamental Rights of the European Union, 2000/C 364/01, Office Journal of the European Communities, online: http://www.europarl.eu.int/charter/pdf/text_en.pdf. 133 See Lippel, supra note 86 at 3; & Lorho, supra note 103 at 23-24. 134 See discussion in Guerrero, supra note 102 at 493 & ff. 135 See Anne Renaut, Moral Harassment: Work Organization to Blame?, online: International Labour Organization, Bureau for Workers Activities http://www.oit.org/public/english/dialogue/actrav/publ/133/1.pdf at 3.

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including prevention of psychological harassment and workplace violence.136 Regarding the need for legislation, it acknowledges that the various forms of psychological harassment and violence at work likewise pose a special problem nowadays, requiring legislative action.137

In the United States, the regulatory response has also focused on occupational health and safety. Policy debates in the United States have been concerned with workplace violence more broadly, a concept which may be understood to include psychological harassment, but which tends to focus on the risks of physical violence perpetrated by non-workers (i.e. members of the general public). Public concern about the risks of violence has arisen in the wake of violent incidents or shooting deaths at work. In some cases, disgruntled former employees return to a workplace and engage in violence. (It appears that the perpetrator of the workplace violence in many cases was tormented and bullied while in the workplace. A similar profile of shootings in schools raises the complex interplay of bullying and violent shooting deaths in schools.) In other cases, domestic violence has found its way into the workplace, with the threatening and stalking of former spouses to their workplaces. In still other cases, the focus has been on abuse by clients or patients (as in the case of health workers). For example, a fact sheet on workplace violence prepared by the US Occupational Safety and Health Act (OSHA) reads: Some 2 million American workers are victims of workplace violence each year. Workplace violence can strike anywhere, and no one is immune. Some workers, however, are at increased risk. Among them are workers who exchange money with the public; deliver passengers, goods, or services; or work alone or in small groups, during late night or early morning hours, in high-crime areas, or in community settings and homes where they have extensive contact with the public.138

See Commission of the European Communities, Brussels, 11.03.2002 COM(2002) 118 final, Communication from the Commission: Adapting to change in work and society: a new Community strategy on health and safety at work 2002-2006 at s. 2.3. 137 Ibid. at s. 3.3.1. 138 OSHA Fact Sheet on Workplace Violence, online: Occupational Health and Safety Administration http://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf.

136

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Pursuant to OSHA, employers have a general duty to provide a safe and healthful workplace for all workers and must take reasonable steps to prevent or to stop violence in the workplace.139

In Canada, federal and provincial legislative provisions on occupational health and safety in the workplace are arguably broad enough to extend to both physical and psychological threats to health and safety at work. Increasingly, health and safety laws and/or regulations are being amended to specify in express terms that protection against workplace violence includes both physical and psychological threats to employee wellbeing. In some jurisdictions, physical and psychological workplace violence is defined so as to exclude violence by co-workers, and is focused instead on risks created by nonemployees. Nevertheless, where workplace violence is defined to exclude co-worker violence, the latter is still addressed, but under the rubric of workplace hazards (i.e. employee acts which are hazardous to the health of others in the workplace).140 Interestingly, a Canadian survey on workplace violence interestingly found a greater likelihood of physical violence from outside sources and a higher incidence of psychological violence from within organizations.141 While it is imperative that employers be attentive to the risks of violence in all of its manifestations, it is no doubt the case that different policy responses may be needed in response to the specifics of the particular violence involved.

On a final comparative note, at the international level, the International Labour Organization (ILO) has been active in examining the phenomenon of workplace violence in global terms. Building on an expansive conception of well-being at work that encompasses physical, moral and social well-being, the ILO defines bullying as: any incident in which a person is abused, threatened or assaulted in circumstances relating to their work. These behaviours would originate from customers, co-workers at any level of the organization. This definition would
Ibid. See, for example, British Columbia, Occupational Health and Safety (OHS) Regulation, definition of workplace violence in s. 4.27 (excludes co-worker violence) and definition of improper conduct in ss. 4.24 - 4.25 (creating a hazard for co-workers). 141 Canadian Initiative on Workplace Violence, The National Labour Survey, Executive Summary (Toronto: March 2000), online: Canadian Initiative for Workplace Violence www.workplaceviolence.ca.
140 139

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include all forms of harassment, bullying, intimidation, intimidation, physical threats-assaults, robbery and other intrusive behaviours. 142 The ILO adopts an expansive approach that endeavours to respond to all of the various manifestations of psychological and physical violence in the workplace. Most recently, it has developed guidelines for risks of workplace violence confronting service sector workers.143

What do these various experiences have to teach us about whether and how psychological harassment should be incorporated into federal labour standards? It would seem fair to conclude that concerns with workplace violence, including its physical and psychological manifestations, are on government agendas in countries around the world. One common strategy is to focus on the occupational health and safety dimensions of the phenomenon of workplace violence, rather than its human rights dimensions. There appears to be a growing consensus that occupational health and safety regulations and laws should at a minimum make explicit their concern with both physical and psychological well-being and safety at work. There is widespread agreement that preventive strategies are essential vis--vis workplace violence. And finally, most law reform initiatives and research reports on workplace violence emphasize the need to be attentive both to individual wrongdoing and to the systemic or organizational dimensions which reinforce risks of workplace violence.

One identified weakness of exclusive reliance on occupational health and safety regulations is that they do not provide sufficient recourse where psychological harassment is occurring but has not caused an occupational injury.144 One of the major reasons for the Quebec reform was repeated identification of this gap in protection in the government reports and consultations leading up to the reform. Individuals, particularly
As quoted by the Canada Safety Council, Bullying in the Workplace, online: Canadas Safety Council http://safety-council.org/info/OSH/bully-law.html. 143 See ILO, Code of practice on workplace violence in services sectors and measures to combat this phenomenon, October 2003, ILO Sectoral Activities Programme.
142

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non-unionized employees, experiencing non-discriminatory psychological harassment did not have an accessible legislative mechanism for obtaining redress.145 Workers compensation provisions required that the employee be rendered ill by the harassment before compensation could be obtained. Central to the legislative reform was a method of comprehensive, accessible individual protection from psychological harassment in workplaces across Quebec. To that extent, it was understood as a baseline labour standard to be assured to all individuals.

In thinking about psychological harassment, one might have thought that it implicates human rights legislative reform as well as labour standards reform. One possible reform would be a revision of human rights legislation on harassment to eliminate the requirement that it be linked to a ground of discrimination. While human rights codes across Canada have tended to be predominantly anti-discrimination statutes, perhaps we should begin thinking about increasing their scope to encompass fundamental individual rights and freedoms. The Quebec Charter of Human Rights and Freedoms does contain a broader array of human rights; nevertheless, the human rights complaints process is available exclusively for discrimination and exploitation claims.146 It does not appear that the Quebec legislature considered amending the mandate of the Commission des droits de la personne et les droits de la jeunesse or expressly expanding harassment under human rights legislation to embrace psychological harassment. This may be linked to continued practical concerns about time delays in human rights commission processes. Nevertheless, the possibility of expanding human rights protection in the workplace beyond non-discrimination may be an important pathway for future law reform. Concerns about the pragmatics of enforcement lead us to the last part of this study.

See Lippel, supra note 86, outlining at 11 that the new legislation does not require une atteinte la sant physique ou psychique de la victime; la prevue dune atteinte sa dignit suffit. 145 While employees could, prior to the law, launch a civil suit under the C.C.Q., the cost of litigation rendered this option too expensive for most employees. See Lippel, supra note 83 at 14-15. 146 R.S.Q. chapter C-12. On the Human Rights Commissions mandate, see s. 71.

144

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5. HUMAN RIGHTS AND LABOUR STANDARDS: ENFORCEMENT AND ACCESS TO JUSTICE One important recurrent theme in the literature on human rights and labour standards is a concern with prevention and with incorporating respect for human rights and dignity at work into the policies and practices of everyday life. With respect to sexual harassment, for example, employers are supposed to develop workplace policies that prevent sexual harassment, or that deal with it effectively, quickly and internally (including having recourse to disciplinary measures against perpetrators). It is impossible to overstate the importance of prevention in the domain of human rights in the workplace. The lasting and often irreparable harms of discrimination and harassment are to be prevented as much as possible. Of course, adjudication has an important role as well and indeed, effective remedies for rights violations have both a compensatory and a preventive purpose. In this final section, I examine two dimensions of access to human rights access to justice. First, I look again at the sexual harassment provisions, focusing not on their substantive scope of coverage, but rather on their procedural dimensions. In particular, I consider whether they should be expanded to provide for a more participatory approach to workplace equity. Second, I examine adjudicative processes for vindicating rights, respect and dignity in the federally regulated workplace and the interface between adjudication pursuant to human rights legislation versus alternative labour law processes.

5.1

Internal Employer Policies and Employee Participation

Currently, in developing a sexual harassment policy, employers are required to consult employees or their representatives.147 Consultation as a statutory requirement embraces the important insight that employers need to inform their policies and practices with the experiential insights of employees.148 Despite the importance of consultation, it remains a fairly limited mechanism for employee involvement. The current provisions do not include any requirement for a joint human rights committee on harassment or discrimination issues, nor any mechanisms for employee involvement in decision-making
Canada Labour Code, s. 247.4(1). Sandra Harding, Rethinking Standpoint Epistemology: What is Strong Objectivity? in Lynda Alcoff & Elizabeth Potter, eds., Feminist Epistemologies (New York: Routledge, Chapman & Hall, 1993) 49 at 56; see also Katherine Bartlett, Feminist Legal Methods (1990) 103 Harvard L. Rev. 829.
148 147

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about these workplace concerns. Similarly, the Employment Equity Act provides only limited involvement of employees or their representatives. 15. (1) Every employer shall consult with its employees' representatives by inviting the representatives to provide their views concerning (a) the assistance that the representatives could provide to the employer to facilitate the implementation of employment equity in its workplace and the communication to its employees of matters relating to employment equity; and (b) the preparation, implementation and revision of the employer's employment equity plan. (2) Where employees are represented by a bargaining agent, the bargaining agent shall participate in a consultation under subsection (1). (3) Every employer and its employees' representatives shall collaborate in the preparation, implementation and revision of the employer's employment equity plan. (4) Consultation under subsection (1) and collaboration under subsection (3) are not forms of co-management.149 Thus, consultation and collaboration are mandated, but interestingly co-management is expressly excluded.

These consultation and collaboration requirements in the domain of human rights contrast with the more robust participatory mechanisms contained in other sections of the Canada Labour Code. For example, in the Group Termination of Employment section of the Code, there are extensive provisions for the establishment of a joint planning committee, with representatives of affected employees and of the employer.150 The joint planning committee is given the mandate of developing an adjustment plan to eliminate the necessity of termination of employment and/or to minimize the impact of the termination of employment.151 There is also provision made for the assistance of inspectors and/or the nomination of arbitrators.152 Similarly in the occupational health and safety provisions of the Canada Labour Code, an elaborate system of self-regulation is

149 150

Supra note 34. Supra note 5, s.214. 151 Ibid. 152 Ibid.

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promoted and required by the provisions.153 Employers with three hundred or more employees are required to set up a policy health and safety committee; employers with 20 or more employees must establish a workplace health and safety committee.154 The participatory provisions on group termination and occupational health and safety mandate greater democratic decision-making in both the unionized and non-unionized workplace. Rather than leaving the question of employee participation in workplace decision-making to private ordering and collective negotiations, legislation requires a limited form of comanagement by requiring joint employer-employee committees. While there may be important structural inequalities that undermine effective democratic employee participation, it is nevertheless significant that in some areas of workplace governance, it is required by legislation.155 This approach fundamentally diverges from the North American collective bargaining model, which makes union representation a key vehicle for participation and democratization in the workplace optional and often difficult to secure in the face of employer opposition.156

These regulatory mechanisms also reflect a shift from an instrumentalist to a facilitative approach to regulation. David Garland has described this shift as a responsibilization strategy or governmentality.157 He notes that responsibilization strategies extend the reach of state agencies by linking them up with practices of actors in the private sector158 Garlands insights resonate with a longstanding recognition of legal pluralism in the labour relations literature.159 There is a risk that these shifts in regulatory strategy reflect reduced government engagement in direct enforcement of substantive
Ibid. Ibid. 155 Employee participation is less effective in non-unionized workplaces. In the federal domain, this concern is assuaged by the relatively high rates of unionization. Moreover, even in non-unionized workplaces, mechanisms for employee participation are important. For example (albeit where job tenure is secured for tenured faculty members), see Colleen Sheppard & Sarah Westphal, Equity and the University: Learning from Women's Experience" (1992) 5 C.J.W.L. 5. 156 For a review of the difficult history of organization in the banking sector, see Elizabeth J. Shilton Lennon, Organizing the Unorganized: Unionization in the Chartered Banks in Canada (1980) 18 Osgoode Hall L.J. 177. 157 See Garland, supra note 42. 158 Ibid. at 124. 159 See, for example, Harry Arthurs, Developing Industrial Citizenship: A Challenge for Canadas Second Century (1967) 45 Can. Bar Rev. 786. For a discussion of the connection between equality rights and
154 153

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labour standards. However, one might also applaud these developments as reflecting a new approach to social governance that has the potential to be more effective, efficient and democratic than the traditional command and control strategies of the Keynesian Social Welfare state.160 It is nevertheless important to enunciate the baseline labour standards in legislation, and to put in place sufficient government oversight to ensure that these new approaches are effective in promoting enhanced respect for labour standards.

One reform option to consider, therefore, is whether the current labour standards provisions on harassment should be revised to require greater employee participation. Such a recommendation was included in the Review Panel Report, Promoting Equality: A New Vision, chaired by Justice La Forest.161 The Review Panel recommended an internal responsibility model for workplace equality. Building on existing employer obligations in human rights laws, the Review Panel concluded that a joint managementlabour cooperation approach is essential and recommended that all (federally regulated) employers with over five employees be required to establish an internal responsibility system with the features listed earlier.162 These features include: (a) Management-Labour Cooperation (b) Policies and Programs Promoting Equality Development (c) Training and Education Should be Provided to All Managers and Employees (d) Mechanism for the Internal Resolution of Complaints of Discrimination, Including Effective Remedies for Discrimination and a Right to Refuse Work in Very Serious Cases (e) Senior Level Commitment for the Internal Responsibility System (f) Monitoring and Documenting Equality Issues in the Workplace (g) Maintaining Liaison with the Human Rights Commission and Other Sources of Information about Human Rights in the Workplace
legal pluralism, see Colleen Sheppard, "Equality Rights and Institutional Change: Insights from Canada and the United States" (1998) 15 Arizona J. of International & Comp. Law 143. 160 See Colleen Sheppard, Inclusive Equality and New Forms of Social Governance (2004) 24 Supreme Court Law Review (2d) 1. See also Anthony Giddens, The Third Way: The Renewal of Social Democracy (Malden, Massachusetts: Polity Press, 1998). 161 Review Panel, Promoting Equality: A New Vision by Grard La Forest et al. (Department of Justice, 2000), online: Department of Justice Canada http://canada.justice.gc.ca/chra/en/chrareview_report_2000.pdf [La Forest Report].

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(h) Monitoring Effectiveness of Equality Programs and Procedures (i) Recognition of the Efforts of Those Making the System Work (including remuneration for time spent implementing internal responsibility system).163

To the extent that one envisions an employers policy in this domain to be a restatement of human rights obligations, with an additional proviso for disciplinary consequences, there does not appear to be much of an advantage gained from a joint management-labour approach. From this perspective, a harassment policy is grafted onto a workplace status quo without any further revision or questioning of employment structures or practices, and is limited to a statement of prohibited individual misconduct that can simply be posted on the notice board. Developing a joint labour-management committee structure to address equality and human rights in the workplace is premised on a much more transformative project a project that would engage employers and employees in addressing the broader systemic and institutional problems of violations of human rights, respect and dignity at work. Indeed, a more expansive mandate would allow a joint committee to work on a range of human rights issues, including, for example, employment equity initiatives, accommodation of employees with disabilities, familywork balance issues, as well as the systemic sources of recurrent problems of groundsbased and psychological harassment.

6.2 Investigative and Adjudicative Options: Human Rights versus Labour Standards

Beyond prevention, protection of human rights in the workplace requires timely and effective individual complaints mechanisms to redress human rights violations. With respect to sexual harassment, the current provisions require that employers set up an internal process for dealing with complaints of sexual harassment. Employees must also be informed of their right to pursue a complaint under the Canadian Human Rights Act. Were the provisions expanded to cover other types of discriminatory harassment, a parallel system of cross-referencing to the Canadian Human Rights Act could be maintained. If psychological harassment were also added, an adjudicative mechanism
162 163

Ibid. Chapter 5 at 3 & 8-9 (see Recommendation 11) (html version). Ibid. Chapter 5 at 3.

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would have to be established, since a human rights complaint would not be consistently available. One option would be to expand the jurisdiction of the current unjust dismissal process to allow claims for psychological harassment where dismissal had not occurred.164 This is already applicable in cases where dismissal (or constructive dismissal) has occurred in a situation of alleged psychological harassment. For unionized employees, the grievance arbitration process could be relied upon as one important adjudicative option. In Quebec, psychological harassment is now legislated into all collective agreements. The fairness of requiring some employees to pursue a more private enforcement system (i.e. grievance arbitration) rather than a public system (i.e. the human rights or unjust dismissal tribunal) is an important issue addressed below.

Debate about access to justice for human rights violations and different adjudicative processes has been extensive. One area of contention is the efficacy and fairness of grievance arbitration versus human rights tribunal adjudication.165 In Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, the Supreme Court noted that: grievance arbitration has the advantage of both accessibility and expertise. It is a reasonable assumption that the availability of an accessible and inexpensive forum for the resolution of human rights disputes will increase the ability of aggrieved employees to assert their right to equal treatment without discrimination, and that this, in turn, will encourage compliance with the Human Rights Code.166 The Court recognized that specialized human rights agencies have greater expertise, but any concerns in respect of this matter are outweighed by the significant benefits associated with the availability of an accessible and informal forum for the prompt resolution of allegations of human rights violations in the workplace.167 The Court emphasized that whenever possible, disputes should be resolved quickly in such a way as

See supra note 5, Part III, Division XIV, ss. 240-246 on unjust dismissal. Further research into the details of the procedural options would be necessary were psychological harassment to be added to the Code. 165 See Coutu, supra note 41; & Guylaine Valle, ed., Le droit lgalit: les tribunaux darbitrage et le Tribunal des droits de la personne (Montral: Thmis, 2001) [Valle]. 166 Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 SCR 157 at para. 52 [Parry Sound]. 167 Ibid. at para. 53.

164

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to sustain a positive long-term working relationship between the parties.168 In short, whereas ideally we might wish to have all human rights adjudication done by publiclyfunded, expert human rights tribunals, it is widely acknowledged that there are significant benefits, in terms of access to justice, of promoting the adjudication of human rights issues through grievance arbitration.169 Workers may also be much more inclined to file a grievance or go to the labour standards commission about a workplace issue than to file a complaint with a human rights commission.170 While it may be useful to ensure access to grievance arbitration regarding human rights issues, one ongoing question is whether the choice of adjudicative forum should be left to the individual employee.

In its comprehensive review of the Canadian Human Rights Act, the La Forest Review Panel addressed a number of these procedural issues. The position adopted by the Review Panel balanced countervailing policy concerns by recommending that human rights tribunals be accorded a supervisory role, and that individuals be given a choice of forum, but that concurrent adjudicative processes for resolving human rights disputes in a timely and efficient way be encouraged. The Panel is of the view that the [Canadian Human Rights] Act must recognize the special expertise and place of the Tribunal as the principal decision-maker in the federal human rights process and as the best source of specialized expertise on human rights issues. We also feel the Act should recognize the specialized purpose of the Tribunal process for resolving human rights disputes. The Panel is therefore of the view that the Tribunal should have a supervisory role in cases where an individual has more than one avenue for resolving a human rights dispute. However, we want to build into that supervisory role a means of

168 169

Ibid. Ibid. Nevertheless, concerns highlighted in the La Forest Report, supra note 161, Chapter 13, included questions about the human rights expertise of arbitrators, and the unions control over the grievance process. For concerns about the lack of human rights expertise, see also Diane L. Demers, Les tribunaux des droits de la personne : quel rle et quelle place leur rserve-t-on ? in Le Tribunal des droits de la personne & le Barreau du Qubec Conference Proceedings, eds., La Charte des droits et liberts de la personne: pour qui et jusquo? (Cowansville, Quebec: Yvon Blais, 2005) 175-206. 170 The empirical work by Valle, supra note 165, revealed a tendency for workers to use the grievance arbitration process when they were already employed in a workplace and the human rights process if they were excluded at the point of hiring. The work of Maurice Drapeau on pregnancy reveals hundreds of labour standards cases involving preventive leaves, and relatively few human rights complaints on pregnancy-related discrimination; see Maurice Drapeau, Grossesse, emploi, et discrimination (Montreal: Wilson & Lafleur, 2003).

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ensuring that resources are not wasted nor confusion caused by the use of two decision-makers when one should be sufficient.171 The La Forest Review Panel further clarified the interaction between different adjudicative processes as follows: Claimants should try to resolve their cases in the labour-arbitration or other dispute resolution process before going to the Tribunal This would enable the individual to seek a resolution of the human rights issue through a decisionmaking process closely connected to the workplace. We think an individual or organization should always be able to file a claim with the Tribunal. This would put organized workers and other employees with access to other decision-makers, such as an adjudicator in an unjust dismissal complaint in basically the same position. All would have access to the Tribunal 172 The La Forest Review Panels position on this issue is consistent with the view that access to public adjudicative bodies must be retained as an option for individuals and groups because human rights constitute quasi-constitutional and fundamental entitlements.173

Another area of concern is the question of overlap between existing workers compensation schemes for injuries occurring at work and compensation for harassment. Whereas human rights processes allow for remedies that compensate for economic and moral harms, as well as punitive damages in appropriate cases, workers compensation regimes emerged as public no-fault insurance schemes to replace fault-based civil litigation in the wake of workplace accidents and injuries. While compensation may be more readily available under workers compensation schemes, questions have been raised as to its adequacy.174

Finally, critiques of human rights commissions, particularly the delay in the investigative and adjudicative processes pursuant to human rights legislation, have reinforced the shift towards labour law dispute resolution processes. Numerous studies and government
Promoting Equality, supra note 161, Chapter 13 at 4 (html version). Ibid. 173 See Fay C. Faraday, Arbitration: Too Many Things for too many People (Paper presented to the Administering Labour Law Panel, International Labour Law Conference, October 2005, University of Western Ontario).
172 171

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reports in jurisdictions across Canada have grappled with the problem of delay in the human rights legislative processes.175 Ideally, human rights reform will redress the current weaknesses in human rights enforcement.

Although the literature is extensive on the procedural dimensions of access to human rights justice in the workplace,176 it is possible to identify a number of recurrent concerns, including: (i) (ii) Ensuring an informed and expert interpretation of human rights norms; Ensuring consistency, neutrality and coherence in the interpretation of human rights norms; Ensuring access to human rights justice, without excessive delay or cost; Ensuring administrative efficiency, simplicity and non-duplication of adjudication; Ensuring that the individual complainant has sufficient input into and control of the process; Ensuring fair and accessible legal representation of individual complainants; Promoting the mainstreaming of human rights concerns into all adjudicative processes;

(iii) (iv)

(v)

(vi) (vii)

(viii) Allowing individual choice over the adjudicative forum whenever possible and practicable; (ix) Ensuring respect for internal self-governance between trade unions and employers; Ensuring full and comprehensive remedies.

(x)

Assessing procedural options in light of these factors provides some useful insights into their strengths and weaknesses. In some instances, there may be an acceptable compromise to advance one concern, even at the expense of another.

174 175

See discussion in Demers & Lippel, supra note 86. See human rights review reports listed in the Selected Bibliography. 176 See Selected Bibliography.

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How do these concerns relate back to the issues of enforcement of human rights, respect and dignity at the interstices of federal labour standards? The current balance in the sexual harassment provisions, which require an internal complaint process, while leaving open access to the human rights process, appears to be a good compromise. In all likelihood, unionized employees would file a grievance rather than going to the human rights commission. Nevertheless, the human rights commission process is available, publicly funded and particularly important for non-unionized employees.177 It does not seem to make sense to provide a duplicate adjudicative process in the Canada Labour Code.

While this procedural interface between an internal employer policy and an external human rights process is available for discriminatory harassment, there is no protection against psychological harassment in human rights legislation. Accordingly, it would be necessary to establish an investigative and adjudicative mechanism to resolve disputes involving allegations of psychological harassment along the lines of the Quebec legislation. Given the existence of the unjust dismissal adjudicative provisions, there could be an expansion of the jurisdiction of that adjudicative mechanism to deal with psychological harassment when it does not culminate in dismissal. In Quebec, unionized workers are required to pursue the grievance arbitration process rather than the process set up by the Labour Standards Commission.178 There are cogent arguments for questioning this requirement. Individuals do not always effectively control the grievance arbitration process and it may be more conducive to human rights justice to give individuals a choice of forum and secured access to a public forum. As noted above, the Review Panel for the Canadian Human Rights Act suggested instead that individuals try to pursue grievance arbitration or other processes initially, but be secured access to the human rights tribunal in cases where those other processes are inaccessible.179 Thus, if a union refused to proceed with a grievance on psychological harassment, the individual
Legal debate continues as to whether employees should be required to pursue grievance arbitrations or whether individual employees should be able to choose the human rights complaints process rather than the grievance process. See Weber, supra note 58; and Parry Sound, supra note 166. 178 Supra note 78, s. 81.20.
177

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could file a complaint under the federal labour standards legislation, rather than having to go through a claim for unfair representation at the labour board.

7.

WORKING RECOMMENDATIONS

Examining the interface of human rights and labour standards legislation through the lens of the legal regulation of harassment at work provides some important insights. Perhaps the most apparent of these is the significant overlap between these two areas of law. It is in the concrete working conditions and relationships at work that human dignity and respect are either vindicated or violated. Given the centrality of work to the everyday lives of individuals, it is critical to develop legislative frameworks that help to prevent human rights violations at work. It is also essential to ensure fair, accessible and effective investigation, mediation and adjudication processes for addressing violations that do occur. While the task of human rights protection transcends federal labour standards reform, and requires significant social, economic, political and cultural change, I offer the following working recommendations as one small part of that larger process: That the current provisions on sexual harassment be expanded to impose an affirmative obligation on employers to develop a policy and internal complaints process for all forms of harassment in the workplace, including psychological and grounds-based harassment as well as for discrimination; That the current provisions in the Canadian Human Rights Act (or collective agreements where applicable) be relied upon for grounds-based complaints of harassment or discrimination; That a statutory complaints mechanism be established to allow for investigation, mediation and adjudication of complaints of psychological harassment (to be added to existing institutional machinery for dealing with complaints of unjust dismissal); That a specialized prevention adviser be appointed by employers to address harassment and discrimination issues;180

La Forest Report, supra note 161. It is interesting to note that during his tenure on the Supreme Court of Canada, Justice La Forest took similar positions on these questions: see Weber, supra note 63; and Bliveau St-Jacques v. Fdration des employes et employs de services publics inc., [1996] 2 S.C.R. 345. 180 This reform idea is drawn from the Belgium legislation. With respect to small employers, it may be more effective to appoint a joint representative with specialized knowledge of a particular industry or sector of federally regulated workplaces (e.g. trucking).

179

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That further research into the burden of proof issues regarding harassment and discrimination be done to assess whether reversing the burden of proof would facilitate the effective protection of employees from workplace harassment; That federal labour standards protection be extended to migrant workers, including anti-discrimination and harassment provisions; That employers be required to establish joint management-labour human rights committees to monitor harassment and discrimination issues in the workplace, to develop policy and best practices, to address accommodation issues, and to ensure an equitable work climate.

These recommendations are working recommendations. I have labelled them working recommendations to underscore the fact that, while they are derived from the research conducted for this study, they remain somewhat tentative and deserving of further research and assessment in terms of the specifics of federal labour standards law reform. It is hoped that they will contribute to the significant project of collectively advancing the promotion of workplace structures, practices and cultures that enhance respect for human dignity and genuinely engage with diversity.

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SELECTED BIBLIOGRAPHY All websites are current as of October 31, 2005. ARTICLES & BOOKS Abrams, Kathryn. The New Jurisprudence of Sexual Harassment (1998) 83 Cornell L.R. 1169. Agocs, Carol. Canadas Employment Equity Legislation and Policy, 1986-2000: Unfulfilled Promises in Carol Agocs, ed., Workplace Equality: International Perspectives on Legislation, Policy, and Practice (New York: Kluwer Law International, 2002). Agocs, C., C. Burr & F. Somerset. Employment Equity: Cooperative Strategies for Organizational Change (Scarborough: Prentice-Hall, 1992). Adell, Bernard. Jurisdictional Overlap Between Arbitration and Other Forums: An Update (2000) 8 Canadian Labour and Employment Law Journal 179. Aggarwal, Arjun P. & Madhu M. Gupta. Same-Sex Sexual Harassment: Is it Sex Discrimination? A Review of Canadian and American Law (2000) 27 Manitoba Law Journal 333. Arthurs, Harry. The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration (1999) 7 Can. Lab. & Emp. L.J. 45. --- . Developing Industrial Citizenship: A Challenge for Canadas Second Century (1967) 45 Can. Bar Rev. 786. Backhouse, Constance & Leah Cohen. Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan of Canada, 1979). Barber, Benjamin. Strong Democracy (Berkley: University of California Press, 1984). Benedet, Janine. Same-Sex Sexual Harassment in the Workplace (2000) 26 Queens Law Journal 101. Beatty, D.M. Putting the Charter to Work: Designing a Constitutional Labour Code (Montreal: McGill-Queens Press, 1987). Black, William W. Report on Human Rights in British Columbia (Vancouver: Multiculturalism B.C., 1994).

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Blackett, Adelle. Making domestic work visible: The case for specific regulation, Working Paper 2, ILO Labour Law and Labour Relations Programme (Geneva: International Labour Office, 1998). Blackett, Adelle & Colleen Sheppard. Collective Bargaining and Equality: Making Connections (2003) 142 International Labour Review 419. Bourgault, Julie. Limpact juridique des nouvelles dispositions de la Loi sur les normes du travail en matire de harclement psychologique sur le rgime lgal prexistant (L.L.M. Thesis, Law Faculty, Universit Laval, 2005) [unpublished]. Bukspan, Elizabeth. Bullying at Work in France (2004) 32 British Journal of Guidance and Counselling 397. ---. Harclement moral sur le lieu de travail: mythes et ralit (Paper presented at the Fondation de Dublin pour lAmlioration des Conditions de Vie et de Travail: Confrence Europenne: Prvenir la violence et le harclement au travail, Brussels, April 2003), online: European Foundation for the Improvement of Living and Working Conditions http://fr.eurofound.ie/working/health/documents/bukspan_%20290403.doc. Bullying Institute. Quebec Provincial Anti-Bullying Law, online: Bullying Institute http://www.bullyinginstitute.org/advocacy/quebeclaw.html. Bussire, Natalie. New Prohibitions Against Psychological Harassment in Qubec (November 2004) Bulletin on Labour & Employment, online: Blakes, Cassels & Graydon LLP http://www.blakes.com/english/publications/leb/Nov2004/NewProhibitions.asp. Canadas Safety Council. Targeting Workplace Bullies, online: Canadas Safety Council http://safety-council.org/info/OSH/bully-law.html. ---. Bullying in the Workplace, online: Canadas Safety Council http://www.safetycouncil.org/info/OSH/bullies.html. Cantin, Isabelle & Jean-Maurice Cantin. Politiques contre le harclement au travail et rflexions sur le harclement psychologique (Cowansville, Quebec: Yvon Blais, 2004). Cantin, Jean-Maurice. Abuse of Authority in the Workplace (Scarborough, Ontario: Carswell, 2000). Chicha-Pontbriand, Marie-Thrse. Discrimination systmatique: fondement et mthodologie des programmes daccs a lgalit en emploi (Cowansville, Quebec: Yvon Blais, 1989).

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Clich, Bernard. Le harclement et les lsions psychologiques (Cowansville, Quebec: Yvon Blais, 2005). Compassionate care leave added to EI Act, Canada Labour Code Emond Harden LLP bulletin, online: Emond Harden LLP http://emond-harnden.com/sep03/leave.htm. Ct, Luc & Robert L. Rivest. Harclement: indemnisation des lsions professionnelles et nouveau recours en cas de harclement psychologique au travail in Service de la formation permanente du Barreau du Qubec 2004, Dveloppements rcents en droit de la sant et scurit au travail, Volume 201 (Cowansville, Quebec: Yvon Blais, 2004). Coutu, Michel. Industrial Citizenship, Human Rights and the Transformation of Labour Law: A Critical Assessment of Harry Arthurs Legalization Thesis (2004) 19 Canadian Journal of Law and Society 73. Demaret, Luc. Unions Act Against Violence at Work, online: International Labour Organization, Bureau for Workers Activities http://www.ilo.org/public/english/dialogue/actrav/publ/133/8.pdf. Demers, Diane L. Les tribunaux des droits de la personne : quel rle et quelle place leur rserve-t-on? in Le Tribunal des droits de la personne & le Barreau du Qubec Conference Proceedings, La Charte des droits et liberts de la personne: pour qui et jusquo? (Cowansville, Quebec: Yvon Blais, 2005) 175-206. Di Martino, Vittorio. Violence at the Workplace: The Global Challenge (Paper presented at the International Conference on Work Trauma, Johannesburg, 8-9 November 2000), online: International Labour Organization In Focus Programme on Safety and Health at Work and the Environment, http://www-ilomirror.cornell.edu/public/english/protection/safework/violence/violwk/violwk.pdf. Dowd, Marc-Andr. Le harclement au travail: mise en uvre de la Charte des droits et liberts de la personne (Paper presented at the mini-conference Le harclement ou la violence au travail, December 1999), online: Commission des droits de la personne et des droits de la jeunesse http://www.cdpdj.qc.ca/fr/publications/docs/harcel_sexuel.pdf. Drapeau, Maurice. Grossesse, emploi, et discrimination (Montral: Wilson & Lafleur, 2003). Dunn, Susan. Whats Going on with Mobbing, Bullying and Work Harassment Internationally The Work Doctor (June 10, 2003), online: The Work Doctor http://www.workdoctor.com/press/webpronews.html. European foundation for the improvement of living and working conditions. Preventing violence and harassment in the workplace, Banque Nationale de Belgique,

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Brussels 29 April 2003, online: European Foundation for the Improvement of Living and Working Conditions http://www.eurofound.eu.int/ewco/health/harassment/conference03.htm. European Industrial Relations Observatory Online. Legislation to be Adopted on Workplace Harassment, online: European Industrial Relations Observatory http://www.eiro.eurofound.eu.int/2002/05/inbrief/be0205301n.html. ---. Social Partners Evaluate Legislation on Workplace Harassment, online: European Industrial Relations Observatory http://www.eiro.eurofound.eu.int/2003/12/feature/be0312304f.html. ---. 2004 Annual Review for Belgium, online: European Industrial Relations Observatory http://www.eiro.eurofound.eu.int/2005/01/feature/be0501301f.html. Fairbairn, Lyle & Margot Priest. Enhancing Compliance with Human Rights Objectives: Policy Options (Ottawa: Canadian Human Rights Act Review Panel Consultation Paper, 2000), online: Department of Justice Canada http://canada.justice.gc.ca/chra/en. Friedman, Gabrielle S. & James Q. Whitman. The European Transformation of Harassment Law: Discrimination Versus Dignity (2003) 9 Colum. J. Eur. L. 241. Fudge, Judy. Labour Laws Little Sister: the Employment Standards Act and the Feminization of Labour. (Ottawa, Ontario: Canadian Centre for Policy Alternatives, 1991). --- & Leah F. Vosko. By Whose Standards? Regulating the Canadian Labour Market (2001) 22 Economic and Industrial Democracy 327. Gagnon, Robert P. Le droit du travail au Qubec, 5e d. (Cowansville, Quebec: Yvon Blais, 2003). Graham, Ian. Mopping Up Mobbing: Legislate or Negotiate?, online: International Labour Organization, Bureau for Workers Activities http://www.ilo.org/public/english/dialogue/actrav/publ/133/11.pdf. Grossman, Norman. Workplace Bullying Constitutes Termination (December 29, 2003), online: Workopolis.com http://www.workopolis.com/servlet/Content/rprinter/20031229/ls20031229. Gross-Schaefer, Arthur, Renee Florshein & Judi Pannetier. The Swinging Pendulum: Moving from Sexual Harassment to Respectful Workplace Relationships (2003) 29 Employee Relations Law Journal 50.

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Guerrero, Maria Isabel S. The Development of Moral Harassment (or Mobbing) Law in Sweden and France as a Step Toward EU Legislation (2004) 27 B.C. Intl & Comp. L. Rev. 477. Gupta, Neena. Quebec Legislation Against Psychological Harassment has Nation-Wide Implications Canadian Payroll and Employment Law (December 2004), online: HRM Guide Canada: Employment Law http://www.hrmguide.net/canada/law/psychological-harassment.htm. Harding, Katherine. Taking Aim at Bullies The Globe and Mail (March 19, 2003), online: The Globe and Mail http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20030319/CA QUEB//?query=harassment. Hirigoyen, Marie-France. Le harclement moral, la violence perverse au quotidien (Paris: Syros, 1998). ---. La malaise dans le travail, harclement moral: dmler le vrai du faux (Paris: Syros, 2001). Jones, Wendy. Taboo in the EU Euro Correspondent (29 October 2004), online: Euro Correspondent http://www.euro-correspondent.com/index.php? option=com_content&task=view&id=185&Itemid=33. Lafond, R. & J. Provencher. Le harclement psychologique: tout ce que lemployeur doit savoir. (Cowansville, Quebec: Yvon Blais, 2004). Lepofsky, David. Duty to Accommodate: A Purposive Approach (1992) 1 Can. Labour L. J. 1. Leydet, Anne. Les dfis des diffrentes instances juridictionnelles en matire de droits de la personne La perspective des tribunaux administratifs in Le Tribunal des droits de la personne & le Barreau du Qubec Conference Proceedings, La Charte des droits et liberts de la personne: pour qui et jusquo? (Cowansville, Quebec: Yvon Blais, 2005). Lippel, Katherine. Droit et statistiques: rflexions mthodologiques sur la discrimination systmique dans le domaine de lindemnisation pour les lsions professionnelles (2002) 14 Revue femmes et droit 362, online: Journals Division of University of Toronto Press http://www.utpjournals.com/jour.ihtml?lp=cjwlf/lippel.html%20. ---. Le harclement psychologique au travail: portrait des recours juridiques au Qubec et des dcisions rendues par la Commission des lsions professionnelles (2005) 7 Revue Pistes, online: Revue Pistes http://www.pistes.uqam.ca/v7n3/articles/v7n3a13.htm.

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---. Les dispositions relatives au harclement psychologique au travail (Position paper presented to the Commission parlementaire sur le projet de loi 143, Faculty of Political Science and Law, Universit du Qubec Montral, December 4 2002) [unpublished]. Lorho, Frank & Ulrich Hilp. Bullying at Work (Working Paper) (Luxembourg: European Parliament, 2001), online: European Parliament http://www.europarl.eu.int/workingpapers/soci/pdf/108_en.pdf. Mackenzie, Ian R. Racial Harassment in the Workplace: Evolving Approaches (1995) 3 Canadian Labour & Employment Law Journal 287. MacKinnon, Catharine A. Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979). Moreau, Nicole. Violence ou harclement psychologique au travail? Problematique, by Nicole Moreau (ministre du Travail, 1999), online: ministre du Travail, http://www.travail.gouv.qc.ca/actualite/harcelement_psychologique/v_h_psy.pdf. Nadeau, Denis. Larbitrage de griefs: vecteur dintgration des droits de la personne dans les rapports collectifs du travail in Le Tribunal des droits de la personne & le Barreau du Qubec Conference Proceedings, La Charte des droits et liberts de la personne: pour qui et jusquo? (Cowansville, Quebec: Yvon Blais, 2005) 153174. Namie, Gary. Workplace Bullying: Escalated Incivility (November/December 2003) Ivey Business Journal, online: Ivey Business Journal http://www.iveybusinessjournal.com/article.asp?intArticle_ID=449. National Union of Public and General Employees. B.C. fails to deal adequately with workplace violence (October 17, 2005), online: National Union of Public and General Employees http://www.nupge.ca/news_2004/n28ma04a.htm. Parkes, Debra. Introduction to the Symposium on Workplace Bullying: Targeting Workplace Harassment in Quebec: On Exploring a New Legislative Agenda (2004) 8 Empl. Rts. & Employ. Poly 423. Payne, Janice B. & Christopher C. Rootham. Are Human Rights Commissions Still Relevant? (Paper presented to the First Annual Catherine Helen MacLean Memorial Lecture, 2005), online: Nelligan, OBrien Payne LLP http://www.nelligan.ca/e/pdf/Are_HR_Comm_Still_Relevant.pdf. Quebec, Centre patronal de sant et scurit du travail au Qubec. Le harclement psychologique: comment y voir? (2003) 19 Convergence, online: http://www.centrepatronalsst.qc.ca/Publications/Les_Publications/conv_mai03.pdf.

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Ravisy, Philippe. Le harclement moral au travail (Paris: Dalloz, 2004). Renaut, Anne. Moral Harassment: Work Organization to Blame?, online: International Labour Organization, Bureau for Workers Activities http://www.oit.org/public/english/dialogue/actrav/publ/133/1.pdf. Rittich, Kerry. Vulnerability at Work: Legal and Policy Issues and the New Economy (Law Commission of Canada, 2004), online: Law Commission of Canada http://www.lcc.gc.ca/pdf/rittich.pdf. Sheppard, Colleen. Equality Rights and Institutional Change: Insights from Canada and the United States (1998) 15 Arizona J. Inter. Comp. L. 1 143. ---. Grounds of Discrimination: Towards an Inclusive and Contextual Approach(2001) 80 C. Bar Rev. 893. ---. Of Forest Fires and Systemic Discrimination: A Review of BC (Public Service Employee Relations Commission) v. B.C.G.S.E.U. 46 McGill L. J. 2 (2001) 533. ---. The Promise and Practice of Protecting Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms in Quebec Research Centre of Private and Comparative Law, Mlanges Paul-Andre Crpeau (Cowansville, Quebec: Yvon Blais, 1997). ---. Systemic Inequality and Workplace Culture: Challenging the Institutionalization of Sexual Harassment (1995) 3 Canadian Labour and Employment Law Journal 249. Soares, Angelo. Quand le travail devient indcent : le harclement psychologique au travail (Montral, 2002), online: Centrale des syndicats du Qubec http://www.csq.qc.net/eav/violence/harcelem.pdf. ---. Bullying: When Work Becomes Indecent (Montreal, 2002), online: Centrale des syndicats du Qubec http://www.er.uqam.ca/nobel/r13566/document/bullying%20report%20soares.pdf. Sturm, Susan. Owen Fiss, Equality Theory, and Judicial Role (2003) Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory, article 18, online: Berkeley Electronic Press http://www.bepress.com/cgi/viewcontent.cgi?article=1015&context=ils. ---. Second Generation Employment Discrimination: A Structural Approach (2001) 101 Colum. L. Rev. 458 Tarnopolsky, Walter S., & William Pentney. Discrimination and the Law (Toronto: Carswell: 1995)

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Thompson, Sharlott K. Hostile Work Environment Disability Harassment Under the ADA (2005) 73 UMKC Law Review 715. Tribunal des droits de la personne & le Barreau du Qubec Conference Proceedings, eds., La Charte des droits et liberts de la personne: pour qui et jusquo? (Cowansville, Quebec: Yvon Blais, 2005). Valle, Guylaine, ed. Le droit lgalit: les tribunaux darbitrage et le Tribunal des droits de la personne (Montral: Thmis, 2001). Vosko, Leah F. Regulating Precariousness? The Temporary Employment Relationship Under the NAFTA and the EC Treaty (1998) 53 Relations Industrielles 123. Weber, Mark C. Workplace Harassment Claims Under the Americans with Disabilities Act: A New Interpretation (2003) 14 Stan L & Poly Rev. 241. Welsh, Sandy, Myrna Dawson & Elizabeth Griffiths. Sexual Harassment Complaints to the Canadian Human Rights Commission (Status of Women Canada, 1999), online: Status of Women Canada http://www.swccfc.gc.ca/pubs/pubspr/0662281578/199909_0662281578_5_e.pdf. Wennubst, Gabriella. Mobbing - le harclement psychologique analys sur le lieu de travail (Lausanne, Switzerland: Ralits sociales, 1999). Yamada, David C. The Phenomenon of Workplace Bullying and the Need for StatusBlind Hostile Work Environment Protection (2000) 88 Geo. L.J. 475. Young, Margot E. Pay Equity: A Fundamental Human Right by Margot E. Young (Status of Women Canada, 2002), online: Status of Women Canada http://www.swc-cfc.gc.ca/pubs/0662327535/200209_0662327535_e.pdf.

LEGISLATION CANADA Act Respecting Labour Standards, R.S.Q. c. N-1.1. Bill C-360, An Act to prevent psychological harassment in the workplace and to amend the Canada Labour Code, 1st Sess., 38th Parl., 2005. Canada Labour Code, R.S. 1985, c. L-2, Parts II & III. Canadian Human Rights Act, R.S. 1985, c. H-6.

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EUROPE Ordinance on Victimization at Work, AFS 1993:17. Loi n 2002-73 du 17 janvier 2002 de modernisation sociale, J.O., 18 June 2002, 1008. Loi n B2059 du 11 juillet 2002 relative la protection contre la violence et le harclement moral ou sexuel au travail, M.B., 18 July 2002, 32501.

GOVERNMENT PUBLICATIONS CANADA Alberta, Human Resources and Employment, Working Alone (2004), online: Government of Alberta http://www3.gov.ab.ca/hre/workingalone/index.asp. Canada, Canadian Centre for Occupational Health and Safety, Violence in the Workplace, online: Canadian Centre for Occupational Health and Safety http://ccohs.ca/oshanswers/psychosocial/violence.html. Canada, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision by Grard La Forest et al. (Department of Justice, 2000), online: Department of Justice Canada http://canada.justice.gc.ca/chra/en/chrareview_report_2000.pdf. Canada, Canadian Human Rights Commission, Annual Report 2004 (2004), online: Canadian Human Rights Commission http://www.chrcccdp.ca/publications/ar_2004_ra/toc_tdm-en.asp. ---, Occupational Health and Safety Legislation in Canada: Due Diligence, online: Canadian Centre for Occupational Health and Safety http://ccohs.ca/oshanswers/legisl/diligence.html. Canada, Department of Justice, Towards a Workplace Free of Conflict and Harassment (Departmental Policy) (2001), online: Department of Justice Canada http://www.justice.gc.ca/en/dept/pub/harassment/harassment.html. Canada, Federal Labour Standards Review, Modernizing Federal Labour Standards: Review of Part III of the Canada Labour Code (Consultation Paper) (2005), online: Federal Labour Standards Review http://www.fls-ntf.gc.ca/en/consrpt-doccons.asp. Canada, Human Rights and Skills Development, Amendments to Part II of the Canada Labour Code (Bill C-12): Frequently Asked Questions, online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/asp/gateway.asp?hr=en/lp/lo/ohs/faq/questions.shtml&hs=o xs.

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---, Compliance Policy: Canada Labour Code, Part III, online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/opdipg/opd/700-1.shtml&hs=lxn. ---, Labour Standards and Compliance, online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/compliancepolicy/labour-standards.shtml&hs=oxs. ---, Pamphlet 12: Sexual Harassment, online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/en/lp/lo/lswe/ls/publications/12.shtml. ---, Prevention of Violence in the Workplace (International and Intergovernmental Labour Affairs, 2005), online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/spila/clli/ohslc/07prevention_vi olence_in_workplace.shtml&hs=oxs. ---, A Study Concerning Federal Labour Standards: Balancing Work, Family and Learning in Canadas Federally-Regulated Workplaces (2000), online: Human Rights and Skills Development Canada http://www11.hrsdc.gc.ca/en/cs/sp/hrsdc/edd/brief/2000-000603/scfls.shtml. ---, Workplace Equity and Compliance, online: Human Rights and Skills Development Canada http://www.hrsdc.gc.ca/asp/gateway.asp?hr=/en/lp/lo/compliancepolicy/workplace-equity.shtml&hs=wzp. Canada, Law Commission of Canada, Is Work Working? Work Laws that Do a Better Job (Discussion Paper) (Ottawa: Law Commission of Canada, 2004), online: Law Commission of Canada http://www.lcc.gc.ca/pdf/work.pdf. Canada, Office of the Privacy Commissioner, Annual Report to Parliament 2003-2004: Part One Report on the Privacy Act (Ottawa: Minister of Public Works and Government Services Canada, 2004), online: Privacy Commissioner of Canada http://www.privcom.gc.ca/information/ar/200304/200304_01_e.asp. Canada, Federal Pay Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (Final Report) (Ottawa: Federal Pay Equity Task Force, 2004), online: Department of Justice Canada http://www.justice.gc.ca/en/payeqsal/docs/PETF_final_report.pdf. Canada, Treasury Board of Canada Secretariat, Chairpersons Message, online, Treasury Board of Canada Secretariat http://www.tbs-sct.gc.ca/rma/dpr/03-04/CHRTTCDP/CHRT-TCDPd3401_e.asp. Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (2005), online: Ontario Human Rights Commission

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http://ohrc.on.ca/english/publications/racism-and-racial-discriminationpolicy.shtml. Ontario, Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (1992) (Chair: Mary Cornish). ----, Evolution of Labour Standards in Qubec, online: Commission des norms du travail http://www.cnt.gouv.qc.ca/en/commission/historique.asp. ---, Le harclement psychologique: interprtations des textes de loi, online : Commission des normes du travail http://www.cnt.gouv.qc.ca/fr/site_hp/outils/lois/default.asp. ---, Promoting Equality: A New Vision, (2000), online: Department of Justice Canada http://canada.justice.gc.ca/chra/en/chrareview_report_2000.pdf. ---, Psychological Harassment at Work, online: Commission des norms du travail http://www.cnt.gouv.qc.ca/en/normes/harcelement.asp. Quebec, ministre du Travail, Rapport du Comit interministriel sur le harclement psychologique au travail (2001), online: ministre du Travail http://www.travail.gouv.qc.ca/actualite/harcelement_psychologique/comite_hpsy.p df. Quebec, News Release, Bilan positif de lan 1 sur le harclement psychologique au travail (June 2005), online: Portail Qubec http://communiques.gouv.qc.ca/gouvqc/communiques/GPQF/Juin2005/10/c0327.ht ml. Saskatchewan, Human Rights Commission, Renewing the Vision: Human Rights in Saskatchewan (Saskatoon: Saskatchewan Human Rights Commission, 1996). Saskatchewan, Labour Occupational Health and Safety, A Guide to Developing a Violence Policy Statement (Regina: Saskatchewan Labour Occupational Health and Safety), online: Saskatchewan Labour Occupational Health and Safety http://www.labour.gov.sk.ca/safety/violence/guide/. UNITED STATES United States, Department of Justice (Federal Bureau of Investigation), Workplace Violence: Issues in Response, ed. by Eugene A. Rugala & Arnold R. Isaacs (Quantico, Virginia: National Center for the Analysis of Violent Crime, FBI), online: Federal Bureau of Investigation http://www.fbi.gov/publications/violence.pdf.

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EUROPE Commission of the European Communities. Brussels, 11.03.2002 COM(2002) 118 final. Communication from the Commission: Adapting to change in work and society: a new Community strategy on health and safety at work 2002-2006. Belgium, Conseil national du travail, valuation de la loi du 11 juin 2002 relative la protection contre la violence et le harclement moral ou sexual au travail (Avis numro 1.484, sance du mardi 1er juin 2004), online: Conseil national du travail http://www.cnt-nar.be/AVIS/avis-1484.pdf.

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