To stop gender discrimination at work, Canada has all the laws it needs – but the system enforcing them is broken

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Gabriela Sefcikova, a project manager at an engineering firm, had a feeling she was being paid less than her male counterparts. But when the company assigned her new financial responsibilities – and access to the budgets – she says she got her proof.

The paperwork showed that other project managers were being paid $50 to $62 an hour, while she was only making $39.66. Moreover, Ms. Sefcikova says she learned that male colleagues who were two levels below her position with a decade less experience were making more money than her.

Ms. Sefcikova complained to her bosses at WSP, a massive Montreal-based engineering firm. She says the company promised to consider her request for a raise at her January performance review. But when the time came, WSP didn’t schedule a meeting. It was then that Ms. Sefcikova directly pointed out the gender implications of the pay differential.

Four days later, on Jan. 16, 2018, WSP fired her, citing a “shortage of work.”

These allegations, which have not been proved in court, are outlined in a human-rights tribunal complaint that Ms. Sefcikova filed that summer.

In its reply, WSP maintains that Ms. Sefcikova was paid fairly for the duties she performed and that her termination was related to less work, not retribution for raising pay-equity concerns. The company also noted that, while she was based in Markham, she was actually working for the New York office, creating additional overhead.

In a statement to The Globe and Mail, the firm said, “Our policy at WSP is that we do not comment on ongoing litigation. For the case you are referring to, we vigorously contest the claim and believe the case is without merit.”

It will likely be 2022 before an adjudicator decides whether Ms. Sefcikova was the victim of gender discrimination, four years after the allegations occurred – four years in which WSP’s operations continue and Ms. Sefcikova is stuck in limbo.

“You don’t experience joy. It’s constant butterflies in your stomach when you think about it,” she says. “It’s not something you want to do – to sue your employers.”

For more than two years, The Globe and Mail has been investigating gender inequities in the work force. Through an unprecedented analysis of public-sector salary records – the only detailed workplace data available in the country – The Globe has found that at some of the country’s most important institutions, women are hitting the glass ceiling well before the executive level. The few who do get through are almost all white. Women are outnumbered, outranked and outearned by almost every measure – at the top, on the way to the top, in the middle, in management, and among six-figure earners in general. This despite the fact that women overtook men among university graduates three decades ago.

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On paper, gender discrimination is illegal.

There are decades-old laws against sexual harassment in the workplace; against paying men and women in the same job different wages because of their gender; against allowing sexism to influence promotion; against firing someone for becoming pregnant; against demoting a person for taking maternity leave. But as part of the Power Gap investigation, The Globe interviewed 25 women (and one person who identifies as non-binary) who have filed formal complaints of gender discrimination that cover off all those issues.

Among those women is a fundraiser who reported a male executive to human resources for ongoing bullying and harassment. The work environment was a “boys’, club,” she said. The organization did nothing, but the boss froze her out after the complaint and her career has suffered since. There’s a scientist who complained that the men on staff were routinely being given all of the research funding, while the women were expected to pose in promotional photos so the institution appeared inclusive. She eventually quit. There’s an administrator who says that when she told her boss she was pregnant, he responded with frustration. The full-time position she had been promised evaporated, a statement of claim alleges.

While Canada has all the laws it needs to prevent gender discrimination, they are almost never enforced. Women are left to navigate the professional risks associated with complaining against the potential rewards – of which there are few.

A person can’t bring gender discrimination complaints to a regular court unless they’ve been fired, in which case it can be tacked on to a wrongful-dismissal claim. The legal system that was established to manage discrimination cases – the human-rights tribunal system – has been chronically underfunded and understaffed to the point where the average wait time for a hearing is a minimum of two years. Four years is not unusual. (There are also lengthy delays in the regular court system, but the tribunal process was meant to be faster.)

The damages these tribunals award are almost always small, typically between $5,000 and $35,000. There are also no cost awards, meaning that even if you win, you’re responsible for your own legal fees. (A tribunal applicant isn’t required to hire a lawyer, but chances are strong a seasoned attorney will be fighting for the other side.)

The result is that bad actors aren’t scared of the punishment, says lawyer Gillian Hnatiw, who specializes in sexual-harassment and sexual-assault litigation. “Because the damages are so low, corporations and institutions can treat it as a cost of doing business,” she says. “And because it’s a system that invites very little media attention, it’s a cost of doing business without public outcry.”

Gail Gatchalian, a labour, employment and human-rights lawyer at Pink Larkin in Halifax, notes it’s not just about lack of enforcement. Governments send inspectors to make sure businesses are in compliance with all sorts of regulations, but no one is actively making sure rights aren’t being violated.

“It’s a complaint-driven system that’s passive,” she says. “By the time you get to an enforcement mechanism, it’s years after the damage is done.”

The consequence is that women are choosing to avoid filing complaints. They’re enduring the discrimination, quitting to find new jobs or – in extreme situations – signing settlement agreements that almost always include confidentiality clauses. The same kind of agreements that silenced Harvey Weinstein’s accusers and enabled his behaviour to continue for years are being used in Canada to resolve all manner of gender discrimination complaints: pay, promotion, pregnancy, bullying and sexual harassment.

The cultural and sociological barriers women face have been well documented. But there’s a missing piece of context in the discussion around why women aren’t rising at the same rate as men, and it’s that businesses and institutions are able to break the law with few consequences.

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On her first day of work in a new branch at the provincial ministry of the environment in Toronto, female co-workers pulled Jeanette Szabo aside to warn her about the new boss.

Working for the director could be “tough,” they cautioned vaguely.

Days into the job, she understood. The man was a bully, Ms. Szabo says, and a bully with an inappropriate sense of humour who expected staff to play along and banter back. To the women in the office, his jokes were tinged with sexual innuendo. He would make suggestive comments about their clothing and love lives.

Then one afternoon, Ms. Szabo says the director said something “really obnoxious,” and she hit her limit.

She described what happened next to a third-party investigator: Ms. Szabo said she loudly scolded the director. In response, he grabbed her by the throat and shook her, but then tried to play it off as a joke. Days later, she confronted him.

“He told me that I was being disrespectful and I needed to fix my attitude,” she remembers. Shortly after the conversation, the director walked out of his office and asked Ms. Szabo to prepare a job posting – for her own position. (The director acknowledged he did this to the investigator later on.)

Ms. Szabo decided to file a formal complaint. Several weeks later, assistant deputy minister Jim Smith sent a confidential memo to the director about the “inappropriate physical contact” with Ms. Szabo. The director was ordered to take “gender relations” training. (In a later statement to the investigator, the director acknowledged he “touched” Ms. Szabo’s neck but denied it was violent.) And that was almost the end of it, except that a woman in another office, in a different city, heard about this slap on the wrist and became enraged.

A year and a half earlier, she had gone to her boss and reported that same director for sexual misconduct. (The incident involved unwanted kissing, touching and fondling.) At the time, her manager told her “she should not have put herself in this position” – a phrase the manager later included in an official memo about the incident. Nothing was done. But now, with the director once again seeming to avoid punishment, the woman complained again. (The Globe has agreed not to name her as she still works for the government, and many of her co-workers are unaware of what happened.)

This time, the government hired the Toronto-based human-rights consulting firm Charles Novogrodsky and Associates to conduct an investigation. In the course of that probe, two more women (four in total) came forward with allegations of impropriety against the director going back a decade.

“Everyone has similar stories and there is a sense that senior management knows but is unwilling or unable to make changes … there is a general sense that as long as he meets his performance targets nothing will be done and that’s why most people until now have never raised these issues,” said one woman in the report.

To the investigator, the director maintained he had done nothing wrong. People “love my sense of humour,” he said. “In my over 18 years in the [Ontario public service] and previously in the private sector, no one except now has even suggested that they are uncomfortable in working with me.”

But the investigator’s report showed that wasn’t true. Half a dozen women told the investigator he made them feel uncomfortable. Some said they avoided meetings and networking events because of him.

Regarding the sexual misconduct, the report’s findings were not ambiguous: There was “overwhelming evidence” that it had occurred. The director called the allegations “completely false.” He also denied an accusation that he’d tried to kiss another female employee in a parking garage. (The director did not respond to questions from The Globe.)

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All of this came out in December, 2006. And if that sounds like a long time ago, know that this case is still not resolved for the woman who filed the sexual misconduct complaint.

For 14 years, that woman – whose once-promising career has stalled – has been trapped in the complicated legal web that those who face workplace gender discrimination are forced to traverse. There was her internal complaint that went ignored. And then another, which led to a third-party investigation.

With her allegations deemed credible, the woman turned to the human-rights tribunal, but learned it was too late. (People have only one year to file a complaint, which is a major problem, human-rights advocates say. “There’s a total disconnect with the law, and how people experience and process harassment and discrimination. By the time they feel strong enough to move forward, they’re out of time,” Ms. Hnatiw said.)

The woman then explored filing a lawsuit, but after two years, was told the avenue was not available to her because she was a unionized employee; she had to file a grievance. Her most recent hearing was one year ago. At that meeting, she was offered a settlement, which she is not supposed to disclose – but it’s significantly less than one month’s mortgage payment.

“I probably would have been better off if I just kept my mouth shut,” she says.

By contrast, days after the investigator submitted the final report to the ministry, the director was allowed to send an e-mail to staff, announcing that he’d made the “extremely difficult” decision to leave because of his ailing parents. Mr. Smith, the assistant deputy minister – the one who had ordered him to take gender-sensitivity training just months earlier – sent a note wishing him well and praising his branch’s “many achievements.” There was a small party. The director immediately landed a management position at a municipality in the GTA, where he worked until 2014, according to his LinkedIn profile.

(At the request of Ms. Szabo and the woman who filed the sexual misconduct complaint, The Globe has not named the director. Doing so, they worried, would put the focus on him, rather than on the provincial government, which they believe condoned his behaviour through inaction.)

In a statement to The Globe, the Ministry of Environment, Conservation and Parks said: “The ministry has a zero-tolerance policy for workplace discrimination and harassment, and takes these matters seriously. Details on specific internal matters are confidential.”

A person who faces workplace discrimination has a few legal options, which vary by province and territory.

They may be able to file a complaint with the ministry of labour, but this is not the place to go looking for significant financial compensation. In some jurisdictions, a person can report an unsafe work environment through occupational health and safety legislation. If the complainant is a unionized worker, they can file a grievance. Depending on the industry, there may be a professional regulating body they can appeal to, such as the College of Physicians and Surgeons. If they were fired – or forced into quitting – a person can file a traditional lawsuit that includes a gender-discrimination component. And then there’s the human-rights tribunal.

No matter the adjudicating body, gender discrimination can be a difficult allegation to prove.

Employment lawyer Sarah Molyneaux says that often after she has explained the risks and options to her clients, as well as the wait times and amount of money they’re likely to receive if they win, many feel they have no choice but to try to settle their complaint.

Almost always, these settlement agreements contain confidentiality clauses, thereby shielding the employer from scrutiny.

It’s impossible to know how many are signed every day, but of the women who spoke with The Globe, 13 were offered a settlement and nine took it. All contained some form of confidentiality or non-disparagement clause.

Everyone said they felt they had no other option but to sign, either because they were afraid of being labelled as difficult if the dispute got out, or because they needed the money immediately.

“[Money] and the wait aren’t the only concerns,” Ms. Molyneaux says. “Often with my clients or prospective clients, they’re very concerned about retribution – being denied opportunities because they’ve complained. It’s quicker to settle. Lots of people just want to move on.”

There are two big challenges in investigating the ways employers use settlement agreements and confidentiality clauses to resolve workplace gender-discrimination disputes.

First, in many cases – maybe most – women who sign these settlements are not allowed to acknowledge that they exist, let alone talk about the preceding events. Doing so could mean having to repay any money they received.

Kathleen Finlay was a policy analyst with the Ontario Securities Commission when she says she was sexually assaulted by a male colleague. After reporting the incident to her boss, Ms. Finlay alleges she was subjected to retribution. She filed a human-rights complaint and, in 2005, the matter was settled, according to public records. But in 2011 and 2012, Ms. Finlay applied for numerous jobs in regulatory bodies and associations within the financial-services sector and was never successful. She believed she had been blacklisted. She informed the OSC that she intended to ask the finance minister to investigate whether the agency had violated the confidentiality clause.

The OSC’s lawyer wrote back to say doing so would open her up to “very real and potentially significant liability for costs and damages,” and that she “may be required to repay to the OSC some or all of the monies received,” according to an e-mail provided to The Globe by Ms. Finlay.

(Ms. Finlay ultimately contacted government officials, and the OSC did not pursue her. She has not landed a permanent job in her sector since filing a complaint. In a statement to The Globe, the OSC said, “We have complied with the terms of the settlement agreement, and ... we have not taken any action against Ms. Finlay when she has breached those terms.)

The second big challenge is that trying to interview someone who isn’t allowed to speak assumes it’s possible to find them in the first place.

A major incentive for employers to offer a payout is to avoid the kind of embarrassment and reputational harm that comes with a public airing of allegations. As such, settlement negotiations are often handled entirely outside the court process, before a publicly available statement of claim is ever filed. Employment lawyers who spoke to The Globe say that the threat of issuing a formal claim is one of the bargaining chips they use to reach a deal. And even if a claim is filed, unless a person knows to look for it, it’s hidden. Canada generally doesn’t have any mechanism to search for lawsuits that haven’t yet been adjudicated.

For example, the only reason it’s a matter of public record that Maple Leaf Sports & Entertainment allegedly fired a 32-year-old mother of two young children as reprisal for her taking a second maternity leave is because the company filed a motion to have part of her lawsuit thrown out – specifically, the section where she alleged that MLSE had done the same thing to another woman. A judge had to rule on that motion (MLSE lost), so it ended up on the Canadian Legal Information Institute’s website.

According to Jasmine Dosanjh’s claim, which has not been proved in court, she had two children in close succession – one in late 2014, and another in early 2016. Four months into her second maternity leave, Ms. Dosanjh says she was told her job was being eliminated owing to a “restructuring.” MLSE had created a new position, but Ms. Dosanjh allegedly did not have the necessary skill set.

In a text-message exchange, which is included in the court file, Ms. Dosanjh asked the human-resources manager why she wasn’t given the chance to compete. He responded: “I agreed that it probably wouldn’t be the best fit with your experience and didn’t think the evenings/weekends would be a fair ask of you given your young family.” Also included in the file is an affidavit from another former MLSE employee, identified as MH, who claimed she, too, was terminated while on maternity leave because of “restructuring.”

In its statement of defence, MLSE denied that it has “a history of terminating pregnant women as alleged.” The company says both Ms. Dosanjh and MH were let go through “valid restructuring.” MLSE also claimed that five months after informing Ms. Dosanjh that her position was being eliminated, it did offer her a comparable job, but she refused it.

The Globe contacted Ms. Dosanjh, but she declined to comment. As for MLSE, a spokesperson said the company has nothing further to add.

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Of the two dozen women who spoke to The Globe, nine of their complaints related to pregnancy or maternity leave. One had her hours dramatically cut because, she says, her boss worried she was about to have a baby. Two lost out on raises because they missed their annual performance reviews while on maternity leave. One woman was fired after telling her boss she was pregnant.

Esi Codjoe, an employment and human-rights lawyer at Turnpenney Milne, says there is a perception that women don’t get fired any more for becoming pregnant, but it still happens.

“Sometimes it’s more overt – a woman says she’s pregnant and is fired – but sometimes it’s that a woman comes back from maternity leave, and the person who replaced her is ‘amazing’ – because the person who replaces a woman on maternity leave is always ‘amazing,’ ” says Ms. Codjoe. “That might sound like hyperbole, but that’s what I often see. And [the woman] is put back in a job that’s not as robust as before she left ... . It’s variations of being fired or demoted, and it’s absolutely still happening.”

Of the women who shared details of their settlement offers with The Globe, two occurred at national not-for-profit organizations, two at large municipalities, one at a large multinational tech company, another at a Canadian entertainment company, one at a major bank, one at a hospital and one at a Crown corporation.

All of the women said they had mixed feelings. On one hand, they were happy to avoid a prolonged court battle, cross-examination and a public fight. On the other, they worried that the organizations they worked for never addressed the root problems. There was no accountability.

Said one woman: “I regret signing it every day, but at the time, I felt I had no choice. I needed the income.”

Another woman, an engineer, told The Globe about a history of sexual harassment at her workplace. She complained multiple times through the years about behaviour from male colleagues and superiors.

In 2019, the human-resources department finally launched an internal investigation. It dismissed her allegation of sexual harassment, but acknowledged there had been “inappropriate” behaviour. The following month, she was fired.

“One day I’d like to figure out a way to talk. I wanted to speak out then. I didn’t know what else to do,” she says.

(Third-party investigations are another piece of this broken system. Some are more diligent than others. One woman who spoke to The Globe said her workplace hired an outside company to investigate after she reported a male colleague had raped her. The final report questioned her credibility and concluded the allegation was unsubstantiated. But oddly, the investigator also reported it had uncovered evidence of other “inappropriate” behaviours on the part of the accused. The woman decided to quit. “I felt that if I tried to fight this, I would never get a job somewhere else,” she said. “I didn’t want this to impact the rest of my career.”)

As for human-rights tribunals – the system designed to deal with gender discrimination – they vary across the country. Some are “direct access,” in which you appeal directly to the tribunal; others go through a commission screening first. In either event, at some point, if it’s deemed to be a worthy complaint, an adjudicator will hear evidence and weigh in.

But that’s usually years after an incident.

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Liane Tessier, a former captain with Halifax Regional Fire & Emergency, waited a decade for her complaint to be resolved.

Ms. Tessier filed a human-rights complaint in 2007 alleging her superiors were discriminating against her because she was a woman. In 2012, the commission dismissed her complaint. But Ms. Tessier appealed, and in 2014, Justice Arthur J. LeBlanc agreed the investigation had been inadequate, as the commission never interviewed the two key witnesses at the centre of her allegations. The case was reopened and, in December, 2017, the Fire Chief agreed to formally apologize.

Ms. Tessier’s experience is an extreme example, but the majority of complainants who don’t settle in mediation typically wait years to get in front of an adjudicator.

Kathy Laird, the former executive director of the Human Rights Legal Support Centre in Ontario, which provides legal aid to tribunal complainants in that province, says that in some jurisdictions, at least, these delays are being purposefully fuelled by government, which refuse to fill staff vacancies. “It’s a system that is being bled of resources,” she says. “It lacks the adjudicators and the staff.”

There is also an increasing concern that tribunals are becoming politicized and that some of the people being appointed to key roles don’t have adequate experience with human rights.

For example, in Alberta, after Premier Jason Kenney’s United Conservative Party won a majority, his government rescinded six appointments made by former NDP Premier Rachel Notley’s government and put forward five new candidates, including a law professor whose research focus is utilities and financial markets’ regulation.

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Birju Dattani is the Yukon Human Rights Commission’s new director of human rights and used to work at the Alberta commission. Mr. Dattani says a lack of resources is creating a backlog, but the other element is that tribunals are seeing more complaints than ever before. These systems were created many decades ago, when gender identity and trans rights weren’t the subject of human-rights complaints. Even in the 1980s, Mr. Dattani says, our understanding of sexual harassment “is not what it is now.” What was tolerated then is no longer acceptable. Governments need to recognize the increased caseload and staff up accordingly. “There are fissures across the board with respect to all human-rights commissions and tribunals, and in some parts of the country, those fissures are wider than they are in other parts of the country,” Mr. Dattani says. “The biggest problem is resource-driven. It’s not that the system is bad or that the system isn’t fit for purpose.”

Layered on top of the delays is the fact that the even if a complainant is successful, tribunals don’t award much money. That’s a disincentive to women who might otherwise go to the tribunal and for employers to change.

Elizabeth Hirsh is an associate professor with the University of British Columbia and a Canada Research Chair in Inequality and Law. One of her primary areas of study is looking at whether organizations that have been charged with violating workplace discrimination laws make positive changes afterward.

Most of Prof. Hirsh’s research focuses on the United States, because Canadian data simply isn’t available. Prof. Hirsh has found that large-scale monetary penalties against companies – and the policy-change mandates that typically go with them – are perhaps the most important motivator. For this reason, she suspects the situation in Canada is worse than in the U.S. “The Canadian system is much more conciliatory in nature. The complaints come in [to human-rights tribunals], and a big chunk go to mediation,” she says. “Organizations don’t really get hammered on the head the way they do in the U.S. On the one hand, I think it’s positive, because conciliation is encouraged. But at the same time, those enormous settlements are important.”

Making an example of bad actors scares other companies into improving their practices, she says.

But for that to happen, employees need to go public. And that comes with an enormous price.

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Shanaaz Gokool is the former CEO of Dying with Dignity.

In July, 2019, after three years at the helm, during which she became a recognized authority on assisted dying, she was fired without cause. Her termination followed a protracted dispute between her and the board over her compensation and allegations of systemic discrimination. Ms. Gokool filed a wrongful-dismissal suit.

In a statement of claim, which has not been proved in court, the former CEO alleges she was paid significantly less than her white, female predecessor, that the organization hired two white people during her tenure and initially paid them more than her, and that the board deliberately undermined Ms. Gokool’s “credibility and authority” with staff. Reads the claim: “Over time, it became clear that DWDC’s Board was simply incapable of providing a woman of colour the respect or compensation that she objectively deserved.”

Dying with Dignity, in its statement of defence, said Ms. Gokool’s “discrimination allegations are based both upon misstatements of fact and speculation as to motives.” It alleged Ms. Gokool was the one to set the salaries of the two subordinates, which she then leveraged in her own contract talks to secure a raise. (In her reply, Ms. Gokool denied this, stating it was the board that set salaries.) In a letter to The Globe, lawyers representing the organization said: “The Statement of Defence is over twenty pages long and responds in detail to each and every one of Ms. Gokool’s allegations contained in her Statement of Claim.”

The case is working its way through the courts. In the meantime, Ms. Gokool has not been able to find a permanent job in her small industry.

“There is a tremendous cost to speaking out. I have been disinvited from things because the organizers thought it would be like taking a side by having me there,” says Ms. Gokool. “I’m now in the process of starting my own advocacy organization that will address systemic discrimination in the not-for-profit sector. I’m an expert in this now.”

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