At a recent dinner, I explained what I do for a living. I received the usual raised eye-brows and comments that the other guests would start to watch what they were saying, but no investigator jokes. (After being a lawyer for 23 years, I believe I have heard the gamut of lawyer quotes and cracks, but I have yet to hear a good workplace investigator joke or jab.)

After the initial reaction, I was also asked, “Why, with all the media attention through #MeToo and policies and laws in place, are we still talking about people not knowing how to behave at work?”

Personally, I find it encouraging that we continue to talk about these issues and that individuals continue to step forward to raise concerns and report inappropriate behaviour that they experience or witness in the workplace. To quote Sam Spade from The Maltese Falcon, “I don’t mind a reasonable amount of trouble.” To me, while not perfectly aligned, reports and complaints happen because misconduct happens and also because individuals have confidence in the investigation and resolution process. We continue to talk about this issue because we are still grappling with understanding why it happens.

Our workplaces are undergoing a broad cultural shift. Among the many factors driving this change is our growing understanding of appropriate workplace behaviour and lessening tolerance for questionable conduct. And our dialogue around the issue is developing. We recognize that workplace misconduct are not stand-alone instances, but rather the outcomes of a system, a structure in the workplace that reflects the values of the people who set up those structures. We accept that to solve a systemic issue requires a system-wide response. But naming the system seems to remain a question for debate.

In this blog, I offer one perspective on the link between our current workplace power structure and how it contributes to creating conflict between people, based on what I have observed in my work as an investigator and after taking another look at the decision in British Columbia Human Rights Tribunal v. Schrenk, [2017] 2 SCR 795, 2017 SCC 62 (CanLII) (“Schrenk”). I also offer three preventative options for employers to consider for your workplace policy review and training.

Positional and personal power

Social scientists tell us that a power differential exists between individuals in every relationship, however brief, including workplace interactions.

In most workplaces, the power-holder wields authority due to positional or role-power. This type of public power is assigned to individuals and is confirmed through their job title and often their salary. In a hierarchically structured workplace, which continues to predominate, the higher up the organizational chart, particularly as it pertains to decision-making authority, the greater your positional power vis-à-vis another employee with less assigned power, also referred to as the down-power position.

At the same time, and due to the same hierarchical structure, this power is not fixed. In one situation, you may find yourself in the up-power position relative to someone who reports to you and, in the next, you may find yourself in the down-power position in an interaction with your own manager or senior leader. For many of us, our workdays require us to navigate and respond to a series of shifts in positional power.

Positional power also exists outside of hierarchy. My own experience in being a lawyer and workplace investigator confers some positional power to me because of my professional specialization. On the ground, this translates into being asked many questions at dinners that start with ‘why’ or ‘I have a friend with a family law problem. Can you help?’ People have an expectation that someone in my position, with my training, education and experience, would have answers. This expectation, which supports a perception of power, operates separately from the reality of whether I do actually have answers.

Positional power is extrinsic power and differs from an individual’s intrinsic or personal power. We all carry personal power. It is our individual agency, our ability to have an effect and have influence. Holding personal power is not the same as feeling personally empowered, however.

Identifying the personal power distribution within a relationship or interaction can be difficult because this type of power is intangible and shifting and the individuals themselves may not recognize the power factors that are at play.

In the workplace, issues and conflict between individuals can arise when either individual:

• is unable to differentiate their positional power from their personal power;
• over-identifies or under-identifies with their positional power; or
• over-uses or under-uses their positional power.

Issues can also arise when the changes to the workplace structure, which could include moving away from a hierarchical to a flat or decentralized structure, are not mirrored by a re-allocation or re-alignment of individual positional power.

The intersection of power and identity factors

Access to positional power and perceptions of personal power are also impacted by identity factors or labels. Certain identity factors, including being white, Canadian-born, educated, male and able-bodied, confer privilege on an individual. And, because of the presumption of value for certain labels, this privilege can translate into opportunity to access power, both positional and personal. People living with privilege may not be aware that they do so and that they are advantaged as a result.

Other identity factors, particularly those that are recognized as requiring protection under human rights codes do not confer this type of privilege. These identity factors, or “prescribed grounds”, are defined in human rights legislation and include (in Ontario) race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Individuals who are identified by society under these categories and individuals who self-identify often face barriers to access opportunities to positional power.

Revisiting Schrenk – Why is the distribution of power so impactful in the workplace context?

When the Supreme Court released its 6-3 decision in Schrenk in late 2017, much of the legal community’s discussion centred on how this decision expanded an employer’s obligations to foster a harassment-free workplace environment to include non-employees.

The case involved two individuals who were employed by two different companies but who worked together on the same project. It was undisputed that one employee discriminated against and harassed the other employee. The question before the court was whether the facts fell within the scope of “regarding employment” and the British Columbia Human Rights Tribunal (BCHRT) had jurisdiction to hear this case.

The majority of the Supreme Court found that the jurisdictional boundaries of the term “regarding employment” should be read broadly to reflect the diversity of current workplaces and the complexity of relationships in those workplaces. They supported the BCHRT’s claim of jurisdiction. Of relevance to this discussion is Justice Rowe’s consideration of the distribution of power and the intersection of identity factors within workplaces:

[42] Respectfully, this [restricting claims of discrimination to hierarchical workplace relationships] fails to capture the reality of how power is exercised in the workplace. For one, non-employers can exercise economic power over employees. A regular patron at a restaurant, for example, can exercise economic coercion over a server through tips. If the exercise of economic power is central to the concept of discrimination “regarding employment”, then this relationship, too, should fall within its scope.

[43] More importantly, however, economics is only one axis along which power is exercised between individuals. Men can exercise gendered power over women, and white people can exercise racialized power over people of colour. The exploitation of identity hierarchies to perpetrate discrimination against marginalized groups can be just as harmful to an employee as economic subordination.

Justice Rowe also speaks of the unique environment within workplaces that amplifies the impact of power inequality:

[44] [The impact of the exercise of power is] exacerbated in the employment context where a complainant is particularly vulnerable. This is because employees, in the context of their work, are a captive audience to those who seek to discriminate against them. Certain passages of the [British Columbia] Court of Appeal’s reasons reflect this point [when they state that] “thoughtless comments made by those [we] encounter in day-to-day life … may be avoided on the street without fear of employment-related economic consequences”. That may be so, but it only highlights the unique vulnerability of the employment context. Whether a server is harassed by the restaurant owner or the bar manager, by a co-worker, or by a regular and valued patron, the server is nonetheless being harassed in a situation from which there is no escape by simply walking further along the street.

In her concurring judgement, Justice Abella also concluded that,

[92] This approach [of expanded liability for workplace discrimination] is responsive to the realities of modern workplaces, many of which consist of diverse organizational structures which may have different employers and complex work relationships. Prohibiting all “persons” in a workplace from engaging in discrimination recognizes that preventing employment discrimination is a shared responsibility among those who share a workplace.

3 Take-aways for employers

Justice Rowe’s description of the “unique vulnerability of the employment context” and Justice Abella’s focus on the “shared responsibility” among all individuals within a workplace resonate with me. It highlights the importance of the workplace culture changes that we are living through. And it identifies the opportunity for employers, who recognize that there are forces of change impacting the structure of power held by employees throughout their workplace, to build this understanding into how they support their employees through change.

1. Do your workplace conduct codes and policies provide guidance for “diverse organizational structures [with resulting] complex working relationships” as identified in Schrenk?

In addition to BC, the respective human rights legislation in Ontario, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and the Northwest Territories contain broad wording similar to “regarding employment”. In those jurisdictions, employers could consider broadening the definition of the term ‘workplace’, expanding the application of the policy to include collaborative or external projects with other entities and identifying the entitlements and responsibilities for your employees under these circumstances.

2. Consider the diversity spectrum of your employees when updating conduct codes and policies.

Along with ensuring compliance, build an understanding that your employees’ perceptions of positional and personal power are impacted by their individual identity factors into your conduct policy review process. Is there an ‘every-person employee’ that you picture as you read through your conduct code and policies? How does this ‘every-person employee’ compare to the reality of your employees? Is there diversity in the review team members? Including diversity perspectives in the review process may not result in significant change to your policy, but it will enhance the outcome.

3. Enhance your policy training to include discussion of power inequality and privilege with all employees.

The most effective training is conducted in-person and provides opportunity for individuals to ask questions and receive feedback. Training that focuses on shifting personal attitudes, including assumptions about power and privilege, will be more effective in an environment of safety and inclusion that is managed by a trained facilitator. Most importantly, to effect change in the workplace around attitudes towards power inequality and privilege, participants should include employees from all levels of positional power.