How is Sexual Harassment Defined?
One of the leading cases on sexual harassment, Janzen v. Platy Enterprises Ltd., identifies three key elements in its description of sexual harassment in the workplace. They are:
a. Conduct of a sexual nature which is gender based,
b. Conduct that is unwelcome, and
c. Conduct that detrimentally affects the work environment or leads to adverse job- related consequences.
Note, while women typically experience sexual harassment more often than men, sexual harassment can and does happen to men. It can also occur between two people of the same sex.
a. What is Conduct of a Sexual Nature which is Gender Based?
"Gender based" refers to behaviour that relates specifically to gender. In other words, the offensive behaviour references gender (e.g. overt sexual solicitation) or the behaviour occurs because of the gender (e.g. an offensive joke does not refer to sex, but the joke is played to embarrass the person because she is a woman).
"Conduct of a sexual nature" includes a wide range of behaviours or actions. Some examples defined by the courts include:
- Physical conduct such as:
Pinching, grabbing, patting, rubbing, sexual assault (which is also a criminal matter), sexual intercourse, unnecessary physical contact, kissing. In other words, any kind of touching that has a sexual connotation.
- Verbal conduct such as:
Making derogatory comments about a person's appearance or body including insulting comments and gestures, insulting nicknames, verbal abuse or threats, unwelcome remarks, jokes, innuendoes or taunting.
Also, comments about a person's or colleague's personal life including inviting a colleague out when it’s clear the person doesn’t want to socialize with you, making sexual propositions, spreading false rumours about a person's sex-life or morals, referring to sexual affairs with previous employees, questions regarding sex life.
- Environmental examples such as:
The display of pornographic or other offensive pictures, making practical jokes that cause awkwardness or embarrassment, crude, sexual or abusive remarks, making suggestive comments, innuendoes, and sexual jokes.
What about generally accepted banter or normal social interaction at work?
If other employees are not offended by crude comments, sexual innuendo, posters on the wall, or other "generally accepted banter" in the workplace, this doesn’t render your complaint or concern invalid. It may however, require that you express an objection to the behaviour so as to let others know that you are offended. If you’ve previously participated in the banter, it may be more difficult, to show that the conduct was unwelcome. If all parties were involved in the banter, there is a need for a specific objection since consensual conversations about sex are not prohibited in the workplace.
b. What do you mean by "unwelcome" in nature?
Courts use an objective test for determining if conduct is unwelcome. The test asks what a reasonable person would consider to be unwelcome, and assumes that one can only be expected to refrain from engaging in conduct which he or she could reasonably have know was unwelcome. An express objection on the part of the victim to certain more overt behaviours such as rubbing, pinching, grabbing and patting, while prudent, is not likely required to show its unwelcome nature because a reasonable person ought to know these actions are unacceptable and unwelcome. However, if someone flirts with the idea of dating a colleague and asks them out on a date, a reasonable person would not likely perceive this to be harassment so an express objection may be required. If the pursuit persists and turns into a pattern of behaviour that demoralizes, humiliates and or impedes an otherwise healthy working relationship, a reasonable person ought to know their actions are unwelcome.
If behaviour is not self-evidently offensive an express objection may be required as a ‘reasonable person’ may not be aware their behaviour is unwelcome.
c. What do you mean by "detrimentally affecting the work environment?
Sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines their sense of personal dignity
What to do if you're being harassed?
Harassment is a serious concern and should not be ignored. Some practical suggestions include:
- Speaking out and making it clear that you do not approve of what is happening;
- Telling your supervisor or someone higher up about your concern and asking them to help;
- Follow your employers’ procedures set out in their harassment policy;
- Prepare and keep a detailed record of the incident(s);
- Talk to a union rep or shop steward, and consider filing a human rights complaint.
Harassment can take on many different forms and it is often difficult to know where to turn or what to do about it. Contact the Coalition’s office for more information or advice about a particular situation.