Your union represents you and other members by negotiating things like better working conditions with your employer, including freedom from harassment in the workplace. Its duties include helping you protect your rights in the workplace. One of the things it’s supposed to do is make sure that your employer takes steps to keep you safe from workers who have sexually harassed people.
What your union should do for you
Ideally, unions act to give employees more power in the workplace. You should be able to go to your union for help when you report workplace sexual harassment. If it agrees that harassment happened or may have happened, it should support you when dealing with your complaint to your employer.
Unions don’t always back you up, though. That’s because your union’s job is to represent both your interests, and the interests of its other members. When it comes to sexual harassment, those two things can come into conflict. The union is supposed to keep you safe, but also defend the harasser. And so, although your union should help you, you may find it isn’t as helpful as you’d hoped.
Unfortunately, in cases where there is a male-dominated union membership, often with an exclusively male executive, there can be a tendency to focus on representing the interests of a male harasser to the detriment of a female co-worker in the bargaining unit minority.Susan Hart, associate professor, faculty of business administration, Memorial University.
“Women’s Rights and Labour Arbitration of Co-Worker Sexual Harassment Cases in Canada.”
The union’s main job is to make sure your employer is following the law and the collective agreement when it comes to handling your complaint properly.
The collective agreement will cover all areas of the work relationship. It explains the rights and obligations of your employer, the union, and the union members. Your collective agreement is specific to your union and employer, and may cover things like wages, hours, working conditions, and benefits. Collective agreements sometimes have specific references to harassment and discrimination, although the majority don’t. If yours does, it can give you more information about how your sexual harassment claim will be handled by your union and your employer.
If you don’t have a copy of the agreement, it should be available through a union representative or perhaps online at the union’s website. Sometimes the union and the employer don’t agree on what wording in the collective agreement means, and there may be other documents online that will help interpret it.
No matter what your agreement says, your employer has a legal duty to investigate if you report being harassed. If they refuse, or the investigation isn’t done properly, your union can file a grievance.
The law says that every employer must follow human rights law and health and safety laws, whether the collective agreement says this or not.
How to talk to your union
It’s your union representative’s job to help you understand your collective agreement and what your rights are under it. This person, who may also be called a shop steward, a union steward, or a bargaining unit representative, is who you can ask for help when you are reporting sexual harassment. In general, discussions between you and the union representative are confidential. They should be able to give you information about your options under the collective agreement and what the union can do to help you.
Unfortunately, people who have experienced sexual harassment can feel disconnected from their union representatives and other staff members of the union. Many unions don’t have diverse representation among their staff, especially in leadership positions. As a result, you might find they don’t support you.
If you don’t feel comfortable talking to your union representative, you can contact your union’s office to see if there is someone else you can talk to. For example, there might also be a women’s caucus, a human rights division, or a labour relations officer who can help with issues like sexual harassment.
Before speaking to your union representative, document everything.
Think about what supports and outcomes you want so you make clear to your union representative what you would like to see happen.
How your union can help you
A good union can help you in a number of ways:
- locating witnesses and persuading them to testify
- providing evidence of previous incidents of harassment by the harasser
- protecting you from retaliation, both from your employer and from other workers, who may be upset that you have complained about a colleague
- providing moral support
The union brings the grievance against the employer on your behalf. It is not a complaint against the harasser. Once a grievance is filed, the union may ask your opinion, but it decides whether it wants to settle the grievance, withdraw it, or change it.
What if I don’t want to pursue a grievance?
You might not want your union to launch a grievance. However, if you’re a unionized worker, you have limited legal options outside of the grievance procedure when it comes to making a sexual harassment complaint. Depending on the situation, your union might be able to help you with one or more claims for other legal supports and remedies, including making a workers’ compensation claim.
Other routes, like making a claim at a human rights body, may or may not be possible. Being a unionized worker makes it impossible to sue your employer in civil court. Workplace issues have to go through the collective agreement process and cannot be dealt with in court.
What if my union doesn’t help?
Your union has the legal responsibility to fairly represent you when it comes to issues in your workplace. It is also supposed to treat you in a way that is not discriminatory under human rights laws. In general, your union owes you what’s called a duty of fair representation. This means it isn’t supposed to treat you, or your sexual harassment case, in a way that is arbitrary, discriminatory, or in bad faith.
Each word has a legal definition.
“Arbitrary” behaviour is actions that are “indifferent, unreliable, implausible, or unreasonable.” Unions themselves aren’t responsible for investigating a complaint; that is the employer’s job. But a union must investigate and pursue grievances if your employer fails to explore a harassment complaint or some other violation of a workplace harassment policy or program. If your union meets with your employer and believes the employer’s version of what happened and drops the grievance without giving you a chance to respond to your employer’s report, that would be an arbitrary decision.
“Discriminatory” behaviour involves your being discriminated against for things like your race, sex, gender, or sexual orientation. For example, it would be discriminatory if your union refused to launch a grievance because you are trans. Or if your union treated two similar sexual harassment complaints differently based on the race of the people involved, that would be discriminatory too.
“Bad faith” actions are driven by malice, ill will, dishonesty, and other kinds of improper motivations. If you and your shop steward have a bad relationship and so they don’t respond to your complaint, that’s bad faith.
The complication here is that often the harasser is a co-worker, so the union owes the same duty to that person. Throughout the process, the union must take steps to make sure it isn’t in a conflict of interest while it’s representing both you and the harasser. This means:
- The union staff who are helping you shouldn’t have a personal connection to the person who harassed you.
- The same union staff shouldn’t be helping both you and the harasser.
- The information you give to the union shouldn’t be given to the staff who are helping the harasser, or vice versa.
- The union can’t refuse to listen to your problems with your employer’s workplace investigation or refuse to deal with reprisals against you.
But this dual duty of fair representation can be bad news for you because it’s well documented that in grievance processes the interests of harassers often win out over those of people who are being harassed.
Unions have a mixed record when it comes to fighting sexual harassment, especially in cases that involve harassment by union members. Union responses to sexual harassment have been shaped by their position in labor markets that remain highly segmented by gender and race, with male-dominated unions playing a passive role vis-à-vis female targets of sexual harassment, and too often siding with male harassers.Ana Avendaño, vice-president for labor engagement, United Way Worldwide.
“Sexual Harassment in the Workplace: Where Were the Unions?”
If you believe that you have a breach of duty of fair representation case against your union, a provincial labour relations body may be able to help you, or you may need to hire a lawyer. You may be able to make a claim against your union to a human rights tribunal.
The grievance process
Filing a grievance is normally the first step in the formal grievance process. Your collective agreement may have more information about what to expect. We suggest you look up what the agreement says about how your union’s process works.
Your harasser can’t directly be held responsible for the harassment through the grievance process. This means your union can’t make your employer discipline or fire your harasser. Your union can, however, make the employer responsible for doing a proper investigation into your sexual harassment complaint. Your harasser could be disciplined or fired based on the findings of that investigation.
Your union can’t force you to participate in the grievance process. But it can refuse to deal with your grievance if you don’t participate.
Each side is called a party. Your union and employer are the parties in the arbitration process.
You are the grievor, or the employee the union is representing.
The mediator’s job is to try to help your union and your employer reach a settlement, though your union will consult with you and consider the outcome you want from the process.
The arbitrator is the final decision-maker. They are a neutral third party hired to listen to legal arguments and evidence from the union and the employer at the arbitration stage. During the hearing, the arbitrator may ask the union representative questions and take notes. They’ll be considering all of the evidence, legislation, case law, and arguments that both sides present.
The arbitrator may be able to order awards such as:
- an alteration in your work location or shift time
- a flexible work schedule or a change to your workload. This might be so that you can attend medical and/or legal appointments, take time off, or take a temporary leave of absence. You might also get enhanced security at work, like a security guard walking you to your car
- an apology from your employer
- certain actions by your employer, like requiring training on understanding and preventing sexual harassment, and learning about equity and anti-oppression in the workplace
- an appropriate investigation into your workplace sexual harassment complaint that could involve interviewing you, the harasser, and any witnesses
- a revised workplace policy that will prevent the same or similar discriminatory practices from happening again in the future.
The grievance process step-by-step
The process for filing a grievance looks different from union to union. Usually, it starts with you filling out your union’s grievance forms and submitting them to the union representative in charge of receiving grievances. You’ll want to read your collective agreement and speak to your union representative to figure out exactly what steps you need to take and any important deadlines.
What happens after a grievance is filed
Once a grievance is filed, your employer will review it and try to get more information about the facts of the complaint. This may be either an informal or formal process. If the issue is that the employer failed to investigate a sexual harassment complaint, the filing of a grievance may prompt them to carry out an investigation. If the complaint is that the investigation they did do was unreasonable, insufficient, or came to the incorrect conclusion, they may speak to the people who led the investigation. This is because, if they don’t carry out a thorough investigation, any decisions they make as a result may be found to be unfair if challenged by the union in arbitration. As a part of their investigation, they may meet with you and ask questions. Alternatively, they may put questions directly to the union.
Typically, employers are required to provide a “reply” to the grievance, indicating whether they accept or deny it. Denying means they take the position that it did not violate the collective agreement. Acceptance means that they recognize that they have not met their obligations to you and will provide the remedy requested by the union. After the employer’s response is received, it could take weeks or even months before your grievance is dealt with, depending on the size of your workplace and union.
Ideally, the grievance is resolved at this stage. If a resolution doesn’t occur, the grievance might be referred to arbitration, mediation, or some other type of dispute resolution allowed by your collective agreement.
How long does the grievance process take?
The length of time of the grievance process can vary. In general, it might take weeks. While it’s very unlikely you would end up in arbitration, that process could take months or longer. Your collective agreement may provide expected timelines. It’s up to your union to decide how it wants to proceed, including if it wants to mediate at all. Your union will consult with you and consider your views, but it will decide what witnesses will be heard, what evidence will be given and what legal positions will be argued if the process reaches that stage.
Filing a grievance shouldn’t cost you anything. If a grievance is complex, your union may pay a lawyer to handle it.
Your collective agreement may say if your grievance can be referred to mediation. Grievance mediation is a confidential and informal way for the union and the employer to try to resolve your issue. The mediator will listen to the union and employer and try to find an agreement that works for both. This is called a settlement.
Unless otherwise noted in your collective agreement, mediation is voluntary—there’s no obligation for either your union or employer to participate or accept any proposed settlement that comes out of the mediation. However, it’s extremely uncommon for sexual harassment cases to go to arbitration.
Your union and employer are the parties to the mediation. You aren’t a party to the mediation and there are no witnesses.
The mediator isn’t making a final decision. Instead, they’re trying to find an agreement that works for both your union and your employer.
You might be unhappy with the final settlement. Unfortunately, most settlement agreements contain a clause that says that this will be the only decision and that you will not make any legal claims on the same facts in any other legal forum, like at a human rights tribunal. If you don’t believe your union followed the law in dealing with your case, depending on your situation, you might be able to make a duty of fair representation application or human rights complaint against the union.
Mediation settlements are usually confidential and there’s no public hearing or declaration of wrongdoing. Any settlement will be between your union and employer. Your union might sign a non-disclosure agreement. NDAs or confidentiality agreements are standard in settlement agreements. If there’s a confidentiality clause in the settlement or if your union signs a NDA, it won’t apply to you unless you also agree to sign.
Your employer and union might tell you that you have to sign off on the terms of settlement. Technically, you don’t have to, but you won’t get whatever benefits are included in the settlement unless you do. Also, if you don’t sign, your employer might refuse to settle your grievance. Same thing for your union.
Your union monitors the settlement. It wants to make sure that the employer is sticking to the agreement and that the workplace is now safer for you and for other union members. If any of the settlement terms are not being met, you can report that to your union representative.
While in theory your case could escalate to grievance arbitration, it’s very unlikely that this would happen. The vast majority of cases that reach arbitration involve harassers who have been suspended, fired, or otherwise disciplined by employers. So the employer is the party defending the affected person’s rights while the union is supporting the harasser, to whom it owes a duty of fair representation, in a highly adversarial environment. More than half the time, the harasser wins.
In the limited number of grievance arbitration cases where a sexually harassed person is the grievor, their union is also representing the harasser. The people who have been harassed generally find the situation extremely stressful, as they are aggressively questioned and their integrity doubted.