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Yesterday, in a much publicized press conference, the RCMP and the federal government announced that they had reached an agreement to settle a class action law suit in which some 500 current and former female RCMP employees claimed that they had been sexually harassed on the job. The agreement is subject to Federal Court approval, and the specific terms have yet to be published.
The settlement marks the most recent effort by the RCMP to turn around its abysmal and publicly-aired record vis-à-vis women in its ranks. There is no question that it is ground-breaking for the iconic police force but also for employers across the country.
There will undoubtedly be lessons learned as the process to apportion the settlement funds among claimants unfolds. The RCMP has named former Supreme Court of Canada Justice Michel Bastarache as the administrator of the settlement. He will interview those claimants with the most serious cases and—we hope—follow-up with a report of some kind that will shed light on how this large public institution repeatedly failed to protect its employees from the most horrific forms of abuse and workplace suffering.
Here is what we know about this settlement:
The RCMP has apologized
In what appeared to be an emotional statement, during yesterday’s press conference, Commissioner Paulson stated as follows:
“[…] [T]o all the women who have been impacted by the Force’s failure to have protected your experience at work, and on behalf of every leader, supervisor or manager, every Commissioner: I stand humbly before you and solemnly offer our sincere apology.
You came to the RCMP wanting to personally contribute to your community and we failed you. We hurt you. For that, I am truly sorry.”
This went well beyond the expression of regret that is often offered in these circumstances. Rather, at least from where we were watching, the apology appeared sincere, heartfelt and unequivocal.
The RCMP has admitted that it discriminated and sexually harassed its members
Commissioner Paulson went on to say that when women begin their career with the RCMP, they expect to be treated and judged on their dedication, courage, competence and performance.
“This has not been the experience for many of the women who have come to the RCMP since that hopeful day forty-two years ago. Instead of succeeding and thriving in a supportive and inclusive workplace, many women have suffered careers scarred by gender and sexual discrimination, bullying and harassment.”
He went on to say that:
“Some of these women left the RCMP, heartbroken, disillusioned and angry. Others stayed and were forced to find ways to cope with this inexcusable condition since they did not see an organization that was willing to change.
Still others courageously tried to make themselves heard by management only to find they were denied movement and opportunity or judged adversely and punished within the RCMP for their efforts.”
This is as clear as an admission as you can imagine and demonstrates intent to move forward with greater transparency and accountability.
The claimants will be able to submit their claims confidentially
The RCMP has indicated that it will set up a process that will allow claims to be submitted and considered in confidence. Among other things, this appears to us that claimants will not be subjected to cross examination by counsel, highly intrusive questioning, or required to participate in a public hearing. While we assume that there will be some method of verifying aspects of the claims – such as when and where the individual worked or if they had to take time off work as a result of the problematic behaviour they encountered at work – we would imagine that once these issues are verified, the claims will be taken as true unless there are very obvious problems with the claimant’s credibility or reliability.
The ability to use this process confidentiality is particularly critical for those individuals who are still employed by the RCMP who may fear reprisals for taking part. We suspect that, without this guarantee, many women for whom this settlement is targeted would not come forward.
The claimants will receive financial compensation
The federal government has set aside $100 million dollars for this settlement. A claimant will receive a portion of these funds and will not be able to sue the RCMP in the future. The settlement sets out 6 tiers of criteria that will be used to assess the severity of the claims. Compensation will be awarded based on that scale with payments ranging from $20,000 to $220,000.
We imagine the scale will account for factors such as how long the harassment went on, whether it was physical or non-physical, the nature of the harassment, as well as the impact on the individual, their family and career path.
There is no confidentiality provision
At yesterday’s press conference, the RCMP’s representatives indicated that there would not be any term of confidentiality in the agreement. This means that claimants will be free to tell their stories. If there is anything positive that can be gleaned from the series of events that led to this settlement, it is that we will be able to learn more and learn from what actually happened to women on the force.
Time frame and number of claimants
The settlement covers women who worked with the RCMP from 1974, when women were first admitted into the RCMP’s uniformed ranks, until the date the agreement receives court approval. Claimants will have up to 6 months to submit their claims.
The settlement was created with the expectation that 1,000 claimants will be compensated – well beyond the 500 women who were involved in the class action. Now that the doors have been opened and the RCMP has asked all women who have been or are currently in their employ to tell them about their experiences, we expect that many will take them up on their offer. The government has indicated that it will compensate all justified claims.
Sheila Fraser’s Review
In July 2016, former auditor general Sheila Fraser was retained by Minister Goodale to review the RCMP’s response to a number of allegations of sexual harassment by female employees that resulted in legal action. In particular, she was asked to provide recommendations on the policies and procedures that were implemented in the aftermath.
The settlement will not affect Ms. Fraser’s review which is expected to conclude in March 2017. In her report, we expect that Ms. Fraser will shed meaningful light on the various and compounded institutional blocks within the RCMP that have fostered a hostile climate for women, and have hindered the proper functioning of policies and investigation of harassment complaints.
Organizational change elements
In addition to the monetary compensation that the victims of sexual harassment will receive, the settlement also includes several specific actions (notwithstanding those been undertaken by Sheila Fraser) that the RCMP will undertake to ensure that things are different moving forward. These specific actions will be implemented on or before December 31, 2017, and are similar to the public interest remedies that we often see in human rights cases.
Among other things, the RCMP has committed to:
- Establishing national and advisory committees to advise on issues relating to “gender, sexual orientation, harassment, equity and inclusivity”. The national committee will produce a publicly-available annual report.
- Setting up and administering an annual scholarship for full-time university or college students who are involved in anti-harassment initiatives in their communities.
- Implementing mandatory anti-harassment training as part of its cadet program
- Improving communication of harassment and promotion policies.
- Continuing to pursue targets of 30% women in regular member positions and 30% women in executive and officer positions by 2025.
What We Don’t Know
How will perpetrators be dealt with?
It sounds as if the compensation of complainants and the disciplining of perpetrators will be dealt with separately. In his comments yesterday, Commissioner Paulson indicated that the “fist of God will fall” on those RCMP members who commit acts of sexual harassment. Yet, before anyone can be disciplined or terminated—as a matter of fairness—they will be entitled to know the allegations against them and who made them. They must also have an opportunity to respond and there must be a proper finding of fact. In other words, the claimants may be required to participate in a hearing or an investigation in which they are required to re-tell their stories. Should management seek to terminate or discipline those who are round guilty of sexual harassment, they could be on the receiving end of grievances and legal challenges in which the claimants are the primary witnesses. This will not allow claimants to maintain their confidentiality. Not only could this neutralize the expectation of confidentiality made as part of the settlement agreement, it may create a disincentive to potential complainants to participate in these processes moving forward. It is hard to imagine how an alleged sexual harasser can be disciplined in the absence of some kind of fact finding and investigative process.
What will come of Justice Bastarache’s interviews?
Justice Bastarache will undoubtedly interview a great number of claimants, and he will be the sole repository of all of their stories. He will hear countless accounts of how the RCMP failed its female employees repeatedly and will gain invaluable insight into the extent of the problem in terms of the RCMP’s overall culture. He will also hear heartbreaking stories about the profound impact of the sexual harassment on the claimants’’ emotional and physical well-being, their family lives and careers. We know from what has already been made public, that the claimants have detailed stories in which they endured sexual assault, physical abuse, sexist comments, sexual pranks and verbal abuse, among other things. Justice Bastarche will have the weighty tasks of committing these cultural failures to record –just as Madame Justice Deschamps did in her 2015 report on sexual harassment and misconduct in Canadian Armed Forces. This is important for not just for posterity—which is particularly critical for public institutions like the RCMP—but also so that we can all understand what can go profoundly wrong at work and the resulting costs to employees and organizations.
We hope that Justice Bastarache will issue a report of his observations from these interviews and his own recommendations as to what the RCMP will need to do to achieve a fully respectful, equal and harassment-free workplace. He will have a unique vantage point, and many of us would welcome his views.
What about new complaints – How will they be handled?
The RCMP has long been criticized for its response and investigation of workplace sexual harassment allegations. Thus far, the RCMP has expressed a reluctance to use external investigators—maintaining that the force is well-equipped to resolve the complaints internally. This is a topic that Sheila Fraser will undoubtedly weigh-in on as part of her review. It is hard for us to imagine that the force will be able to maintain this position given that its credibility on this issue has been so seriously compromised. Will the Minister of Public Safety and Emergency Preparedness set up a separate and independent adjudicative body of some kind to consider such complaints? What kind of processes would this body use to determine fact and penalty? We will have to wait and see.
What about other forms of gender-based harassment?
The class action and the settlement relate specifically to sexual harassment against female employees of the RCMP. Any men who experienced this kind of treatment are not covered by the settlement and it does not refer to other forms of gender-based harassment such as harassment based on sexual orientation, gender identity and gender expression.
As part of the settlement, the RCMP has promised to establish committees to advise on issues related to “gender, sexual orientation, harassment, equity and inclusivity” so there is some indication that the scope of this problem will be expanded to include other kinds of harassing experiences. That being said, we hope that these will be captured in all of the culturally-transformative steps the RCMP takes moving forward.
What about generic workplace harassment?
Over the years, there have been reports and cases about employees who experienced generic workplace harassment (i.e. harassment not based sex) in the policing context. Indeed, the existence of a bullying problem within the RCMP was conceded by Commissioner Paulson at a Commons public safety meeting last winter. We hope that as the RCMP has committed to a major cultural overhaul, it will include a commitment to respect and civility for all.
The RCMP settlement demonstrates a step in the right direction for the long-beleaguered institution and for the women who can finally begin the healing process. We hope that the RCMP will build on yesterday’s success and the ensuing gains to its reputation and public accountability to create an iteration of the RCMP that better reflects Canadian workplace values.
Janice Rubin and Megan Forward
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.
About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.