Area of Law: Employment Law
Answer # 618
Are you being sexually harassed?Region: Ontario Answer # 618
Not all sexual comments or actions in the workplace are sexual harassment. Sometimes it is difficult to decide what is and what is not sexual harassment. People who work together often date each other without it being considered sexual harassment. The following information will help you to determine if your situation is actually sexual harassment under the law.
There are at least five basic things to consider when deciding if the situation is sexual harassment. Is the behaviour or comment:
- Unwelcome or vexatious?
- Used to punish or reward someone?
Is the behaviour sexual?
The first thing to consider is whether the behaviour is sexual. The comments or actions must involve something about sex, sexual orientation, gender identity or gender expression.
It does not have to be obvious, however, and often it is very subtle. For example, someone may never talk about sex, but the way they talk about other things may be sexually suggestive.
Is the behaviour unwelcome?
The second thing to consider is whether the behaviour is unwelcome and unsolicited. Unwelcome means that the person being harassed has let the harasser know that the behaviour is unwanted, or it should have been obvious to the harasser. This does not necessarily mean the person being harassed has to directly say anything about the behaviour. The person being harassed could just walk away when a comment is made, or tear up a written note. A response such as this is enough to show the harasser that their behaviour is unwelcome.
Unsolicited means that the person being harassed did not willingly participate in the behaviour or encourage it. For example, if two people are telling sexual jokes and making sexual innuendoes, one of them cannot later claim that it was sexual harassment, because they willingly participated in the behaviour themselves.
Is the behaviour ongoing?
The third thing to consider is whether the behaviour has been ongoing. Usually a one-time comment or action will not be considered sexual harassment unless it is very serious. For example, if someone tells an offensive joke once, it is not sexual harassment under the law. However, if someone continues to tell offensive jokes even after being told to stop, it is more likely to be considered sexual harassment.
Is someone being forced to participate in sexual behaviour?
The fourth thing to consider is whether someone was forced to participate in sexual behaviour. This could be where an employer forces an employee to have sex to get a promotion or to avoid being fired. In this type of case, the employee may participate in the behaviour, but can claim sexual harassment because they did not willingly participate.
Is there a reward or punishment?
The fifth thing to consider is if there is a reward or punishment based on the employee’s reaction to sexual advances. Rewards are usually raises or promotions, while punishments are usually demotions, decreases in pay or forcing the employee to do different work which they do not like. If an employer repeatedly asks an employee out on a date and the employee refuses and is then fired, this is clearly sexual harassment. It may also be sexual harassment if the employee does go on the date to keep from getting fired.
As of January 1, 2021, changes to rules relating to workplace violence, harassment, and sexual harassment in federal workplaces have changed. Policies in the federal government’s new Work Place Harassment and Violence Prevention Regulations, and corresponding changes to the Canada Labour Code have been consolidated and broadened in Part II of the Code. The definition of workplace “violence and harassment” has been expanded to include:
“any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.”
As part of the changes, employers working in a federally regulated industry or workplace, should:
- understand the definition of workplace harassment and violence
- develop a workplace harassment and violence prevention policy with the policy committee, the workplace committee or health and safety representative
- assess the risk of workplace harassment and violence
- conduct employee harassment training to be completed by Jan. 1, 2022.
Visit the Employment and Social Development Canada website for more information.
If you are unsure if your situation is sexual harassment, a lawyer can help you to decide and help you deal with the situation. Additional information may also be obtained from the Ontario Human Rights Commission. Visit ohrc.on.ca.
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