Harassment in the workplace: indefensible
The Barreau du Québec recently made public the report of a survey conducted among its members which shows problems of harassment in the legal world. In particular, the respondents who voluntarily participated in the survey reported a professional culture “which fosters silence and impunity in the face of harassment and sexual violence” (p. 8).
This report emphasizes the significant repercussions of this violence, which is divided into 3 categories, namely the bullying, the unwanted behavior and the coercion, as well as the fact that people who have experienced one or other of these forms of violence have more readily disclosed them than reported or denounced. Thus, “only 1% of the men and women who answered question 19 (“ Did you report or denounce one or more events to the syndic of the Bar? ”)” (P. 47) indicated having done so.
Sexual misconduct, which has long been criticized when it targets patients or clients, can also be criticized when the acts committed or the comments made are aimed at colleagues, interns and also other members of the support staff.
Moreover, this misconduct does not occur only among lawyers. Over the past year, the Disciplinary Council of the Collège des médecins du Québec and that of the Chambre des notaires du Québec have sanctioned professionals who have been accused of such reprehensible behavior.
In the first case, a doctor was accused of not having behaved impeccably towards a person with whom he had entered into a relationship in the exercise of his profession. According to what is reported in the guilty decision, he asked her in particular if he could smell her perfume when he approached her and kissed her neck. The Disciplinary Council of the College of Physicians declared him guilty on the sole charge of the complaint which accused him of having contravened article 17 of the Code of ethics of physicians and article 59.2 of Professional Code (Prof. C.). Since the person with whom the doctor had entered into a relationship, first trainee, was neither a doctor nor a professional within the meaning of Professional Code, the Disciplinary Council ruled that Articles 110 and 111 of the Code of ethics of physicians could not be applicable to him, these 2 articles being in section X of the Code of ethics of physicians (art. 110 to 115), entitled “Relationship with colleagues and other professionals”.
In its decision on sanction, the Disciplinary Council first had to determine whether it should use the new sanction framework provided for in article 156 paragraph 2 Prof. C., targeting sexual offenses, and impose on the professional the minimum threshold, that is, a 5-year strike off and a fine of $ 2,500. The assistant syndic argued that the offense of which the latter had been found guilty was “an act of the same nature” (paragraph 106) as those provided for in article 59.1 Prof. C.. The Council concluded that this was not the case since the doctor had not abused a professional relationship to commit the acts of which he had been convicted while the person mentioned in the complaint was offering him secretarial services. For his reprehensible conduct, he imposed a 15-month delisting on him, while indicating that this sanction would have “the merit of sending a clear message to members of the profession that it is indefensible for a doctor to behave disrespectfully. and vexatious which manifests itself in repeated unwanted gestures towards support staff to the point of constituting sexual harassment ”(para. 370).
Honor and dignity of the profession
This message was reiterated by the Disciplinary Council of the Chambre des notaires du Québec, which, in a second case, made a point of specifying “that it is indefensible for a notary to have disrespectful and vexatious behavior which manifests itself by repeated and unwanted actions towards support staff ”(paragraph 190 of the sanction decision). In the decision on guilt, the notary in question had been declared guilty, under the first count of the complaint, which included 4, of having contravened article 59.2 C.prof. and article 1 of Code of ethics of notaries for some words made and actions committed to a person when hired and subsequently, when she had become his employee, an act derogatory to the honor and dignity of the profession.
The Council accepted the testimony of the person mentioned in the complaint, while stressing that the professional in question had recognized some of the events described by the latter, explaining that it was then a game of seduction. For the Council, the latter’s behavior in a work context was unacceptable since his conduct of a sexual nature was unsolicited and that he had thus abused his power, first as a future employer, and, subsequently, as employer, by “forcing inappropriate sexual gestures and explicit sexual demands that have no place in such a context.” (paragraph 156). He also underlined the repetitive and increasing nature of the actions taken. In its decision on sanction, the Council insisted that the unwanted acts had undermined “the dignity and integrity” (paragraph 158) of the person mentioned in the complaint, that they ultimately had. forced to resign and that she had also lodged a complaint with the Commission for Standards, Equity, Health and Safety at Work for an adjustment disorder with anxious mood. The Council was of the opinion that the behavior of the notary in question could not “constitute a simple error on his part in the context of a game of seduction, but indeed a fault of such gravity as to constitute a ethical breach ”(paragraph 184). He imposed a temporary 18-month delisting on him under this head, a sanction that will ensure the protection of the public “at a time when society no longer accepts this kind of behavior.” (paragraph 189).
These decisions were appealed to the Professions Tribunal.
A note of hope
While waiting for concrete and effective actions to be put in place, such as those suggested in the investigation report prepared by the Barreau du Québec, so that professional circles become free from harassment, these 2 case law illustrations show what is happening. ” exposes a professional who is the subject of a disciplinary complaint for this type of misconduct, in addition to giving a glimpse of the progress made and that which still remains to be covered.
According to what is mentioned in the report, some of the respondents’ accounts argue that, in the legal environment, harassing behavior and sexual violence tend to be less accepted. The “important role that witnesses and confidants can play” (p. 55) is also underlined. Finally, “the importance of prevention and awareness was strongly highlighted in the data” (p. 59). In this regard, the report states that an “investigation by the International Bar Association found that in Canada, respondents·e·s were significantly less likely to have experienced sexual harassment when there was training against harassment or sexual violence in their workplace. This therefore suggests that these trainings may be effective ”(p. 60).
- Doctors (Professional Order of) c. Dancing (CD Méd., 2020-02-25), 2020 QCCDMD 8, SOQUIJ AZ-51678297.
- Doctors (Professional Order of) c. Dancing (CD Méd., 2020-09-25), 2020 QCCDMD 27, SOQUIJ AZ-52200489, 2020EXP-2808. Appeal, 2020-11-09 (TP), 200-07-000255-209.
- Notaries (Professional Order of) c. Freedom (CD Not., 2019-11-18), SOQUIJ AZ-51650536.
- Notaries (Professional Order of) c. Freedom (CD Not., 2020-10-09), 2020 QCCDNOT 17, SOQUIJ AZ-52200514. Appeal, 2020-11-16 (TP), 200-07-000256-207.