Trying to crawl through a loophole on gender discrimination

When last week’s human rights commission hearing on gender discrimination in Halifax’s fire service began, lawyers for HRM tried to get the complaint tossed on a technicality. The good news is that they lost. The bad news is that they tried.

In lawyer terms, it probably made sense. Scrounge in the legal underbrush for a technicality, a loophole to crawl through to derail potential litigation against your client. Save your client some unwanted publicity, maybe even a little — or a big — cash settlement. All good, all standard-issue Litigation 101.

Unless, of course, your client happens to be an agency of the Halifax Regional Municipality — which is to say the citizens of Halifax — and there is already a demonstrated and pernicious history of workplace hostility by your client toward women and minorities: to wit, the Halifax Regional Fire Service.

Suddenly, HRM lawyer Karen MacDonald’s opening gambit at last week’s Human Rights Commission Board of Inquiry into complaints by former firefighter Kathy Symington — that Symington waited too long to file her complaint so her case should be dismissed — takes on the colour of what it is: a craven attempt to keep Symington’s story from being heard.

Symington’s lawyer, Ron Stockton put it well: “To come and have an employer say, ‘Well, sorry, you filed three or four months too late and so the whole thing should be chucked out — what happened doesn’t count, what counts is the technicalities.’”

Luckily, the board of inquiry’s chair, Dennis James, decided not to decide on the issue during the preliminary stage of the inquiry, so we got to hear Symington describe what happened to her.

In 2000, three years after she joined the fire service — one of Halifax’s first women firefighters — Symington’s car was vandalized on two separate occasions while parked at work. No one else’s car was touched. When it happened a third time — the windows were smashed out of her car — she went to the police who asked if anyone at work might be targeting her. “They believed somebody at work was harassing me. They sent me home for that day because I was pretty upset.:”

While she was home, a fire captain, whose identity is covered by a publication ban, showed up at her house.  “He proceeded to ask questions, ‘who’s your favourite sexual partner? What’s your favourite sexual positions? And do you like oral sex?’ I was shocked at what I was hearing.” She knew the man as a work friend, but they had never had an intimate relationship.

When he continued showing up at her house uninvited, she complained to the deputy chief who told her it wasn’t the first time there had been complaints about the man who appeared to be acting like “a jilted lover,” but he discouraged her from complaining officially. “He said it would be really bad for the stations and it wouldn’t turn out well for me.”

Another deputy chief did push her to file a formal complaint, which she did, but she didn’t attend an internal hearing into them. “I wasn’t wanting to deal with people who knew who the perpetrator was and did nothing about it,” Symington told the inquiry.

After the fire service hired a third-party investigator, she did agree to file a complaint. But she says the complaint’s details were altered by the department before it was handed over to the investigator, who eventually ruled there’d been no harassment and suggested — despite denials from both parties — that she and her fellow firefighter had been sleeping together so this was all the result of a lovers’ spat.

In July 2004, the department sent her an official letter to say she’d been handed a three-day suspension because the investigator determined her allegations were false. “The three-day suspension is simply a reality check that there are direct consequences to this behaviour in the workplace,” declared the letter.

A year later, Symington went on maternity leave. When she was ready to return to work in 2007, she was informed she’d been suspended again — this time for not responding to a call or email while she was on leave!

“I feel like I’m being harassed when I’m off with my child, trying to have time with my child,” Symington testified. “I’m being punished for putting in a workplace rights complaint.”

When she did return to work, she discovered the letters were now in her official file. In fact, she says, “I was told that upper management said if I continued to try and get those letters off my file, they would implement the three days and keep that on my file for five years.”

Later, however, after her union grieved, another assistant deputy promised to remove the letters from her file.

That didn’t happen either. Instead, Symington spent the next four years trying to get a “fresh start,” even requesting a platoon switch to avoid her harasser. The result was she found herself attacked by co-workers who suggested she’d vandalized her own car to get attention. They called her “crazy.”

In 2013, after she attempted to return to work again following surgery for complications of a car crash that required her to seek “accommodation” to continue as a firefighter, Symington spoke with the fire chief, Doug Trussler. Citing the fact she hadn’t responded to a phone call or email during her leave six years before, he told her, “there was no place for her in fire.”

She asked for her file and discovered the letters were still there. “I felt like I was still being held accountable for making a complaint.”

She was denied accommodation.

While it is important to point out the hearing is far from over and there will almost certainly be rebuttal witnesses who will challenge Symington’s account, it is even more important to point out Symington would not have had the opportunity to testify about what she claims happened to her if the city had gotten its way and her complaint had been tossed on a technicality.

It is also worth noting Symington is not the first to take the department to the human rights commission over allegations of systemic gender discrimination. (Another retired male firefighter has sued the fire service for racial discrimination.)

And Symington isn’t the first to have had to overcome bureaucratic and systemic hurdles to even have her complaints heard. In an historic December 2017 settlement, the city’s fire-chief-of-the-day, Ken Steubing formally apologized to firefighter Liane Tessier. It’s worth repeating in full:

As the oldest department in Canada, there is much history to be proud of. However, I stand before you today to acknowledge part of our history we are not proud of.

Firefighting has historically been a male-dominated career. In Halifax, and in many fire services across our nation, this has led to systemic discrimination based on gender. For this, I extend an apology, on behalf of Halifax Regional Fire & Emergency, to Lianne Tessier, former volunteer firefighter, and any other female firefighter who has experienced discrimination within our organization. I also recognize the courage it took for Ms. Tessier to bring this issue forward to the Human Rights Commission in 2007.

Being a firefighter is difficult enough without being exposed to a disrespectful work environment. Our firefighters put themselves on the line to protect lives and property and they all deserve support and respect. More should have been done to ensure our female firefighters were given support and respect.

As an organization, we must ensure our female firefighters feel welcome, valued and respected as members of our team. As the Chief, it is my responsibility to ensure our workplace is free from all language and behaviours meant to hurt, undervalue, or discriminate.

Halifax Regional Fire & Emergency has made tremendous progress on this issue over the last several years to educate personnel and increase awareness of appropriate workplace behaviours. Workplace Rights Harassment Prevention Policy training and diversity and inclusion training is now mandatory for all staff and is part of the promotional process. We have also implemented new mechanisms to address issues promptly and in a confidential manner. All complaints are now reviewed by a qualified conflict resolution specialist.

We have one of the highest ratios of female firefighters in the country, but we can do better. I commit to continuing the good work started by my predecessor, and by the leadership and members of this great organization, to continue building a culture of respect and inclusion for all. This effort will put Halifax Regional Fire & Emergency in a leadership role in the Canadian and international Fire Service and help us achieve our goal of attracting and retaining more female firefighters — whose contributions will help shape the future of our organization and our community.

For its part, the human rights commission said its investigation had been “very thorough and now other female firefighters in Nova Scotia should also benefit from the outcome.”

Less than two years later, it is bad enough we are still dealing with the fallout from that part of “our history we are not proud of.” That the city itself would attempt to argue the human rights commission should not hear this complaint because of a technicality makes it even worse.

We haven’t come very far at all, baby.

This column first appeared in the Halifax Examiner May 27, 2019.

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