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What is Workplace Sexual Harassment?

Workers have protections against sexual harassment in the workplace. These protections can be found in occupational health and safety laws, human rights laws, the criminal law and civil law. Workers' compensation laws can apply to sexual harassment in the workplace as well.

It may be confusing for workers to determine if something they have experienced is workplace sexual harassment or even violence. Often behaviour that is sexual harassment is dismissed as just part of the job, especially in workplaces where sexual harassment is common.

Definitions of workplace sexual harassment can be found in laws, policies and collective agreements. There are, however, some common elements of workplace sexual harassment regardless of which laws, policies or agreements cover the situation.

Elements of Workplace Sexual Harassment

If you can answer yes to any of these questions you may have experienced workplace sexual harassment. Have you:

  • Avoided workplace locations such as the lunchroom because of sexual banter or displays of sexualized images?
  • Avoided workplace social functions because of uncomfortable comments about your appearance?
  • Refused the advances of a co-worker, employer or customer but continued to be asked out by them?

The common elements of sexual harassment discussed below can help you recognize workplace sexual harassment when it occurs.

The behaviour takes place in the workplace.

This does not mean that it has to take place on the work premises. Workplace sexual harassment can take place outside of the walls of a traditional workplace including:

  • on construction sites or field work locations
  • during service/business calls to a client’s business or home
  • while attending work-related conferences or workshops
  • at office parties and social events
  • in communications with employers, co-workers, clients or customers (calls, texts, emails)

Workplace sexual harassment can also be perpetrated by people other than co-workers, supervisors or employers. Customers, clients and the general public can also be responsible for incidents of workplace sexual harassment.

Three of the incidents took place at CAC meetings or retreats held at hotels. These were clearly business meetings, but included a social component. That the incidents occurred after the official business of the meetings and, for example, in a hospitality suite, did not mean that they were outside the workplace and therefore outside the employment context. The meetings were perceived by the staff as job related. They occurred in the context of the work environment.~Simpson v. Consumers’ Assn. of Canada (Ontario Court of Appeal)

The behaviour is of a sexual nature.

The term sexual harassment covers a wide range of behaviours.

There is a broad range of conduct that falls within the definition of sexual harassment. The conduct may be physical or verbal, it may be overt or subtle, it may have arisen from one incident or a number of incidents.~The Employee v The University (British Columbia Human Rights Tribunal)

Sexual harassment can range from things like displaying an inappropriate photograph, to comments about someone's physical appearance, to inappropriate touching, to sexual assault.

Sexual harassment can manifest itself both physically and psychologically. In its milder forms it can involve verbal innuendo and inappropriate affectionate gestures. It can, however, escalate to extreme behaviour amounting to attempted rape and rape. Physically the recipient may be the victim of pinching, grabbing, hugging, patting, leering, brushing against, and touching. Psychological harassment can involve a relentless proposal of physical intimacy, beginning with subtle hints which may lead to overt requests for dates and sexual favours. ~Sexual Harassment in the Workplace, Arjun Aggarwal

Whether the behaviour is sexual harassment will depend on the particular situation.

There are as many circumstances as there are human interactions. For this reason, any legal finding of sexual harassment must be grounded in the context and facts of each case. ~The Employee v The University (British Columbia Human Rights Tribunal)

The behaviour is unwanted.

This does not mean that the victim must have told the harasser to stop. It is common for victims to not speak up because they have fears about the impact this will have on their work environment or their safety. In some cases it is enough that the harasser should have reasonably known that the conduct was unwelcome.

However, when it is safe to tell the person to stop this can be a simple and direct way to deal with an issue, particularly if you have doubts about whether the person knows their conduct is unwelcome. The fact that harassment continued after you asked the person to stop can provide evidence that they knew the behaviour was unwelcome.

The trial judge erred in excusing some of the plaintiff's conduct as 'consensual conduct among friends.' Because of the power imbalance in an employee's relationship with a supervisor, and the perceived consequences to objecting to a supervisor's behaviour, an employee may go along with the conduct. The trial judge failed to consider whether the reason T felt that she was obliged to go along with the plaintiff's behaviour was to ensure that she retained her job. ~Simpson v. Consumers’ Assn. of Canada (Ontario Court of Appeal)

The behaviour negatively affects the person being sexually harassed.

In some cases harassers will state or imply that accepting the unwanted behaviours is required if the victim wants to keep their job or advance in their job. This is a particular type of sexual harassment sometimes called 'quid pro quo' - someone does something in exchange for some benefit.

This, however, is not the only way that workplace sexual harassment can negatively affect those who experience it. Simply having to endure this type of conduct in the workplace alone has a negative effect on victims. Depending on the situaiton, it may or may not be necessary to show that there is a negative impact.

Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. ~Henson v Dundee (United States Court of Appeal)

Irrelevant Factors

Behaviour that includes the elements listed above is workplace sexual harassment regardless of whether:

The behaviour was not directed at any particular person.

Sexual harassment need not be directed at a particular individual. Employers face a high duty to ensure that the workplace is free from material that is offensive. ~Jones v. IWA ( British Columbia Supreme Court)

The harasser was joking or did not mean to upset anyone.

In harassment cases…intent or motivation is often irrelevant. That is because often the perpetrator of the harassment will say "I meant it as a joke" or "I didn't mean to upset" the victim. In harassment cases intent…can never be a defence. ~Aramark Canada Ltd v United Food and Commercial Workers Canada (Ontario Labour Arbitration)

The harasser and the victim previously had a consensual sexual or dating relationship.

He deliberately refused to accept that the relationship was terminated and to respect her expressed wishes to be left alone.This, in my view, constitutes sexual harassment in the workplace. ~Menagh v City of Hamilton (Ontario Superior Court)

If you have been sexually harassed

While it is important to understand your options, it is also important to remember that you have the power to make your own decisions about what you want to do. Both taking action and staying silent can impact your future employment as well as your physical and mental well-being.

Regardless of what you may decide to do about it, if anything, it is always a good idea to keep notes about what has happened. If you decide to take action these can be very helpful. Confiding in a trusted friend or co-worker can also help you deal with the situation and provide you with support as you exercise your options.

If you think you may have experienced sexual harassment or you have experienced it you are entitled to up to 4 hours of free legal advice to help you understand your options. Requesting a referral to a lawyer is simple and any information you provide will be kept confidential. Apply Now.

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This site provides general information about workplace sexual harassment only. It is not a substitute for receiving legal advice about your situation. Apply now to receive 4 hours of free legal advice.

The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).

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