Area of Law: Employment Law
Answer # 617
What is sexual harassment?Region: Ontario Answer # 617
Sexual harassment generally refers to unwanted sexual comments or actions. If it takes place at work, or outside work by your co-workers or your employer, the Ontario Human Rights Code and the Canadian Human Rights Act make this conduct illegal. Some types of behaviour could also be an offence under the Criminal Code. Under the Ontario Occupational Health and Safety Act (OHSA), sexual harassment is defined as:
a. engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
b. making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
There are at least five types of behaviour that are considered sexual harassment if they are unwelcome. Sexual harassment can take the form of spoken words, gestures, showing offensive pictures, physical contact, or intimidation. The following are examples of each of these types of behaviour.
Spoken words or sounds
Spoken words or sounds that are offensive may be sexual harassment if they happen on an ongoing basis. For example, it may be sexual harassment if someone is:
- always talking about sex,
- telling jokes about sex or about gender roles,
- making whistling or kissing sounds,
- making sexual comments that are embarrassing,
- using vulgar language,
- making sexist remarks or insults,
- questioning someone about their sex life, or
- making sexual threats or put downs.
Obscene or threatening gestures can sometimes be considered sexual harassment.
These may be obvious or subtle, and may be made by someone’s eyes, face, hands, or other parts of their body. Even an idea or thought that is made known to others by a gesture can be sexual harassment. This could happen when someone gives you looks with a sexually suggestive meaning, holds or eats food in an obscene or embarrassing way, is always flirting with you when it is unwanted, or sends you offensive or suggestive notes.
Showing obscene pictures or making someone look at something offensive is also a form of sexual harassment. If someone posts sexually explicit photographs or symbols, displays pornography, exposes himself, or shows another person obscene cartoons or drawings, it may be sexual harassment.
Unwanted physical contact or threats of physical contact can be considered sexual harassment. To be considered sexual harassment, there does not always have to be direct contact. It could just be that someone stands too close to you on an ongoing basis and makes you feel invaded or uncomfortable, or that someone corners you. It may be sexual harassment if someone brushes up against you, pinches you or touches you in an inappropriate way. If someone tries to force you into sexual touching or touches you without your consent, it may also be considered sexual assault under the Criminal Code.
Sexual harassment can also take the form of intimidation. Examples of intimidation include repeated requests for a date, or offering or asking for sexual favours. It can also take the form of an employer making an employee wear revealing or suggestive clothing.
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.
Sexual harassment can take many forms, but will usually make the employee being harassed feel very uncomfortable in the workplace. Every employee in Ontario has the right to work without being sexually harassed. Additional information regarding sexual harassment in the workplace can be obtained from the Ontario Human Rights Commission, or contact the Employment Standards office at the Ministry of Labour.
A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.
If you have experienced workplace violence or harassment, you should contact a lawyer for legal help and assistance.
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