Can anyone really start to rejoice now that it appears that sexual violence against women is on the decline? Forum research recently conducted a poll the partial results of which were published in the Toronto Star on Friday, December 19, 2014. According to Forum Research, three in ten Canadian women report being raped or sexually assaulted. Forum Research’s findings depart sharply by approximately twenty percentage points from Statistics Canada’s 1993 survey findings. According to a 1993 Statistics Canada survey, fifty per cent of Canadian women reported being sexually assaulted or raped.
Undoubtedly in some quarters the Forum Research findings appear to be cause for optimistic, given the apparent downward trend. Critics of the Forum’s poll are quick to highlight the study’s methodological flaws including the vagaries in the research question posed which they say result in under reporting.
Whether one relies upon the Forum Research study findings, or those of Statistics Canada, the fact is that victims of rape, and sexual assault are rampant throughout workplaces. Chances are that in virtually every workplace there are women who are suffering silently from the emotional devastation of rape, sexual assault, and sexual violence. To put this point into sharp focus, consider what the statistics on sexual assault really mean. Let’s be a little reductionist for a moment. Extrapolation from these statistics leads to the inevitable conclusions that in aggregate and by a conservative estimate a third of all female bosses have been raped, or are survivors of sexual assault. A third of all female CEOs have been raped, or been the victim of sexual assault. A third of all women working in non-traditional occupations are survivors of sexual violence. A third of women working in government have been raped, or are survivors of sexual violence. A third of women working on the shop floor have been raped. A third of all female politicians have likely been raped. Chances are that a third of your best female buddies at work have experienced sexual violence. That female co-worker who many men are quick and eager to describe as “bitchy” may have been raped, or survived sexual violence. Chances are that a third of all female professors have been raped. It is likely that a third of all female social workers, dentists, doctors, and restaurant workers have been raped. And men, it is entirely possible, that three in ten of women in Canadian boardrooms have been raped.
Victims of rape and sexual violence exist in virtually every organization in every sector of the economy.. Look deep enough and you may find survivors of rape and sexual assault all around you in the workplace. They are employed as teachers, bankers, traders, trade unionist, nurses, doctors, journalists, lawyers, judges, police officers, secretaries, factory workers, shop keepers, transportation workers, public servants, etc..
Despite what might seem to be a critical mass, the truth is that rape and sexual assault is faceless in workplaces all across Canada. It is a conversation that does not happen in workplaces, for the most part. Unless labelled as a sex offender, perpetrators of rape are faceless too. Female victims of rape and sexual violence are often embarrassed and opt not to report their experiences to the authorities or anyone for that matter. Making matters worse is the trepidation so many rape victims experience when perpetrator of sexual violence is a fellow co-worker with whom they must maintain daily contact and a civil relationship.
Being raped or the subject of sexual violence is something that many women internalize, keeping the psycho-social impact of the experience to themselves. Chances are, then, that in a typical workplace each of us has worked with countless women who quietly endure the psycho-social effects of sexual violence. Who are these women? They often remain faceless. The truth is that the effects of rape can be maddening, scarring a woman for life and resulting in serious mental health issues.
What are the implications of these statistics for Canadian employers? Whether it is three out of ten or five of ten women who report being the subject of sexual assault or rape should be of no relevance to an employer. What matters is the extent to which employers have systems and programs in place to assist survivors of sexual violence and its impact in the workplace.
Being a survivor of rape, or sexual assault is a lonely seat to occupy in many workplaces across Canada. Contemplate the answer to this question for a moment: how might a woman who has been raped behave in workplace the morning, days, weeks, and months after being raped? Can you imagine the likely reaction if the day after being raped the victim calls in sick and tells her male boss” “I can’t come into work today because I was raped last night. In fact, I do not know when I will be able to come back to work, but I will be off work sick for some time.” Can you imagine any female victim of sexual assault saying such a thing to her male boss? In case you are tempted to think it may be easier for her to tell HR, or disclose this fact to a female boss, then think again. The day after the woman has been raped is it reasonable to expect her to show up to work, ready, willing and able to work at the maximum productivity level? What does the experience of rape mean for attendance management? What does it mean for employer benefits? What does it mean for employee relations? What does it mean for productivity and efficiency?
Men in organizations operate largely oblivious to the plight of women. For many men in organizations there is a complete disconnect, unless the issue of rape is present, personal and immediate. And even then men tend not to connect the dots in terms of how a woman’s experience with sexual violence may structure her psyche and determine her workplace responses to seemingly innocuous events. All across Canada, and perhaps North America, men are likely not to have developed a detailed body of intellectual or emotional intelligence about sexual violence, let alone how it plays itself out in workplaces. Men in workplaces tend not to empathize with the likely impact of rape on a woman’s relationships, engagement and productivity at work, not because they do not want to, but because some of them are perpetrators and predators while others do not have the language and patience required for effective engagement, unless and until the issue becomes personal. Men frequently become incensed when the issue of rape becomes personal (for instance, if their own daughter becomes the subject of sexual assault. This might even be true if the man is himself a perpetrator of sexual violence against women) Even when the issue of sexual assault become personal scores of men find it difficult to transfer that emotional upset to the plight of a complete stranger who has been raped.
In terms of female-female relationships in the workplace, many rape victims are terrified to chat to another female about the experience. In organizations in which there is no critical mass of female bosses, the rape victim may opt not even to utter a word about her experiences for her female boss to hear. Why? A lot of female supervisors in male dominated workplaces adopt a view that social ills should not be brought into the workplace. Of course, the issues are complicated when in the context of lesbian-lesbian sexual assault and rape, or when the perpetrator of the alleged rape is a co-worker. And they are even further complicated in workplaces in which a bargaining agent plays a dual and conflicting role of partner and antagonist in regulating workplace conduct. The end result is that a female victim of rape exists in a world of silence at home, and at work. She cannot, for a variety of reasons, talk about her experiences with anyone at work without risking emotional angst and trepidation..
Given the prevalence of rape and sexual violence survivors in the workplace, an important question is what is the appropriate role of workplace actors and managers in supporting survivors of rape, and sexual violence? Stated differently the question is what is the appropriate balance between the survivors right to privacy and the organization’s need to cultivate healthy workplaces comprising of productive employees.
Organizations walk a tight rope when attempting to be sensitive to the plight of sexual assault victims. There are at least three types of problems that plague organizations willing to take positive steps to assist survivors of sexual assault. Firstly, a large number of organizations have no policy, let alone procedure designed to assist sexual assault survivors remain productive at work. Some organizations may have developed a certain level of sophistication and implement an EAP program. Many small to medium sized enterprises lack a process or mechanism to start the conversation, let alone sustain such any on-going program. Few organizations link or even understand how its tactics and strategy to avoid liability in sexual harassment cases contribute to the sexual violence survivor’s loneliness and productivity challenges at work. An organization’s need to avoid liability for issues such as sexual harassment tend to provide proof positive to survivors of sexual assault that the organization cares very little about the plight of females caught in the trap of sexual assault. Many victims of sexual assault do not trust HR to discuss these issues, in part because HR is often an active participant in engineering or executing the liability avoidance strategies. A formalistic organization consumed with the prevention of liability from sexual harassment sends a powerful message to victims of rape to “shut up and put up”. Moreover, HR is often the active seat at which organizational conflicting interests are brokered, and traded off.
Another problem is that not a single human rights legislation in Canada impose a positive duty to accommodate survivors of rape, unless and until the effects of the assault come within the meaning of one of the prohibited grounds. In a bizarre way, then, the absence of a legislative scheme that provides a framework for organizational action means that female survivors of sexual violence at the hands of a male or female perpetrator forces the survivor to position the impact of that violence as an “illness”, a “disability, mental illness in order to get statutory relief and benefit from the duty to accommodate. A bizarre effect of human rights legislation is the fact that the perpetrator of sexual assault may in fact have more workplace rights than the victim. Why? Several human rights legislations have “record of offences” as a prohibited ground of discrimination. In a crazy twist of logic, it is entirely possible in a workplace for the perpetrator of rape and sexual assault to be protected even if his name is included on the sex offence registry. And though likely infrequent, it is entirely possible for the victim of a sexual assault to be working in the same organization as the convicted perpetrator of a similar assault.
The point is that duty to accommodate is an insufficient response to the issue of the workplace impact of sexual violence against women, if for no other reason than its statistical prevalence. The duty to accommodate does not require any employer to work towards the creation of healthy workplaces. It simply requires the employer to “accommodate”. In practice, the duty to accommodate often translates into an employer assigning modified work to employees, even if that work is not meaningful. For many sexually violated women, the undue hardship standard translates into the legal framework that further victimizes them for events that are not their fault. Analytically, not only does the duty to accommodate approaches the issue of the workplace impact of sexual assault from an inappropriate perspective, it is also tempered by “undue hardship”, An employer has no obligation to create a job for anyone. As well, an employer has no obligation to continue to employ anyone, even in unionized settings. The end result is that women can be fired not for being the victim of rape, but because of the psycho social impact of the rape on them together with an absence of legal protection, except in circumstances when those effect amount to, or a doctor certifies that those effects come within the meaning of a mental disability or disabling condition..
Is this what we as a society want to do to our women? It is time for the legislature to act and do something about this problem. Though the Occupation Health and Safety Act protects employees against violence in the workplace the legislative provision does not go far enough when dealing with the issue of sexual violence against women when the violence does not occur in the workplace. It is time for the legislature and others to act. and create an appropriate framework that prompt, even reward employers who support those who suffer silently in the workplace from one of society’s worst social ills. It is time to shift to the creation of healthy workplaces.