Workers have protections against workplace sexual harassment. These protections can be found in laws, policies and collective agreements. There are certain key elements of workplace sexual harassment that apply regardless of the law or policy that covers the workplace.
Have you:
- Avoided workplace locations such as the lunchroom because of sexual banter or displays of sexual 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?
If you answered yes to any of these questions, you may have experienced workplace sexual harassment.
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.
There are some common elements of workplace sexual harassment regardless of which laws, policies or agreements cover the situation.
Elements of Workplace Sexual Harassment
The common elements of workplace sexual harassment are:
- There is a behaviour of a sexual nature.
- It takes place in the workplace.
- It is directed at a worker.
- The person knew or should have known it was unwelcome and/or harmful.
The behaviour is of a sexual nature.
The term sexual harassment covers a wide range of behaviours. A single incident or series of incidents can be sexual harassment.
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 following are some examples of sexual harassment..
- using email or social media to make sexual threats, or to harass or exploit someone sexually
- abusing authority by soliciting a sexual or romantic relationship from a subordinate, or making social invitations with sexual overtones to a subordinate
- making abusive or derogatory remarks or jokes about someone’s gender, gender identity or gender expression, sex or sexual orientation (for example, homophobic remarks)
- sexual invitations or requests in return for a promise of a reward (such as a promotion)
- displaying offensive posters, cartoons or images of a sexual nature such as nude or partially nude depictions or depictions of sex
- sending inappropriate electronic communications (for example, sexually explicit emails)
- discussing one's sex life or anyone else’s sex life or genitals
- pet names or nicknames that are sexually suggestive darling, sugar, doll, honey, sweetie, dear
- repeated requests for dates
- unwanted sexual advances
- jokes that describe sex acts, use sexual language or sexual innuendo
- groping, grabbing, petting, massaging, hugging, kissing
- blocking peoples’ way, looking people up and down, standing too close, cat calling, whistling, gestures that have a sexual connotation
The behaviour takes place in the workplace.
This does not mean that it has to take place on the work premises. A workplace is anywhere a worker is performing work for their employer. 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)
- on social media
- in the worker’s home if they are authorized to work from home
Under human rights laws people are protected against harassment on a prohibited ground at work as well as in other situations such as when providing services to the public.
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’ Association of Canada (Ontario Court of Appeal)
It is directed at a worker.
In Saskatchewan workers, students, independent contractors and volunteers are all protected against sexual harassment in the workplace.
If the harassment is based on a prohibited ground it against human rights laws whether it is directed at a worker, customer or other person in places such as a restaurant, store or hotel.
The person knew or should have known it was unwelcome and/or harmful.
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 fear the impact this will have on their work environment or their safety.
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’ Association of Canada (Ontario Court of Appeal)
If the circumstances are such that the person should reasonably have known it was unwelcome or harmful, that is enough.
There are a number of things that can indicate that the person should have known their behaviour was unwelcome or harmful including:
- The person objected – however the fact that a person did not object does not excuse the behaviour.
- The nature of the remarks or action themselves can show that the person should have known their behaviour was harmful and unwelcome.
- The fact that the other person did not respond at all can also show that the person should have known their behaviour was harmful and unwelcome.
Individuals convey displeasure at offensive sexual conduct in a variety of ways, and…a reasonable persons should read these signs for what they mean. Subtle indications, through gestures, facial expressions, body language, and other hints should be enough to convey rejection.
— New Brunswick Human Rights Commission
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.
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.
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 this referral to a lawyer is simple and any information you provide will be kept confidential. Apply Now.
