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What is Sexual Harassment?

Definition of Sexual Harassment

Federally, the Canadian Labour Code provides the following definition of sexual harassment: “any conduct, comment, gesture or contact of a sexual nature, (a) that is likely to cause offence or humiliation to any employee; or (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.”

The following definition of harassment, taken from the Ontario Human Rights Code, is representative of how harassment is defined under Canadian law as:

“engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

Effective September 8, 2016, Ontario’s Sexual Violence and Harassment Action Plan Act (Bill 132) amends the Occupational Health and Safety Act (“OHSA”) to expand the meaning of workplace harassment to include workplace sexual harassment. Bill 132 also imposes additional obligations on employers concerning their workplace harassment policies, programs and investigations.

SEXUAL HARASSMENT.

KNOW WHERE THE LINE IS.

In simpler terms, sexual harassment can include (but is not confined to):

  • Unwelcome sexual advances
  • Requests for sexual favours
  • Other verbal or physical harassment of a sexual nature
  • Repeated and unwelcome comments
  • Isolating or bullying a person based on their sexual orientation (e.g., lesbian, gay, transgender)

As the Ontario Human Rights Commission’s Policy on Preventing Sexual and Gender-Based Harassment points out:

The reference to comment or conduct “that is known or ought reasonably to be known to be unwelcome” establishes a subjective and objective test for harassment. The subjective part is the harasser’s own knowledge of how his or her behaviour is being received. The objective component considers, from the point of view of a “reasonable” third-party, how such behaviour would generally be received. Determining the point of view of a “reasonable” third-party must take into account the perspective of the person who is harassed.

Harassment, sexual or otherwise, is any unwanted conduct, whether verbal or physical, that humiliates or offends. Harassment can interfere with the ability to do your work, and thus can result in serious consequences in the workplace.

Sexual harassment, in particular, has been defined as:

“unwelcome verbal or physical advances or suggestions of a sexual nature, any sexually explicit derogatory statement, any pattern of sexually discriminatory remarks made by someone in the workplace that is offensive or objectionable to the recipient, causes the recipient discomfort, creates a hostile atmosphere, or interferes with the recipient’s job performance.”

Welcome vs Unwelcome Conduct

Let’s look more closely at how the line is crossed by examining welcome vs unwelcome conduct. 

Welcome Conduct

The law is not meant to forbid the enjoyment of another’s company. Behaviour or conduct that is considered welcome (acceptable or appropriate by the recipient) is not considered sexual harassment. For example:

  • An occasional compliment;
  • Mutual flirtation or sexual contact that is consented to by both parties;
  • Good natured jokes or jesting where both parties find the conduct welcome;
  • An employee who is asked out on a date by another employee and the recipient agrees;
  • An employee who is asked out on a date by another employee and the recipient does not agree, but is not offended by the invitation.

Unwelcome Conduct

When offensive conduct becomes a condition of continued employment…this is considered unwelcome behaviour.

When conduct is severe or persistent enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive…this is considered unwelcome behaviour. In most cases, one incident of unwelcome, offensive conduct will not be severe or pervasive. Some harassing conduct is so severe that very few incidents are necessary to rise to the level of unlawful harassment. If the harassing conduct is extremely severe, it is possible for a single incident to be sufficient.

  • In a sexual harassment context, such conduct includes, but is not limited to, sexual assault, rape, repeated grabbing and fondling, or offensive and repeated touching while discussing sexual activity.

Less severe conduct can still constitute unlawful harassment if it is pervasive—that is, if there is a pattern of repeated conduct. One offensive joke may not constitute harassment, but repeated jokes combined with other offensive conduct, such as pranks, touching, and/or posting of offensive materials, could be sufficiently pervasive to rise to the level of workplace harassment.

Who decides whether the behaviour is unwelcome?

Usually it is:

  • The person targeted by the behaviour, or
  • The other people affected by the unwelcome behaviour

There can be a fine line between welcome and unwelcome behaviour. If you always abide by this phrase, you will never run into problems:

When in doubt, DON’T!

Forms of Sexual Harassment

Sexual harassment can include:

  • sexual solicitation and advances (your supervisor asks for sex in exchange for a promotion)
  • a poisoned environment (pornographic images in the workplace)
  • gender-based harassment (targeting someone for not following sex-role stereotypes)
  • violence (if inappropriate sexual behaviour is not dealt with, it may move to more serious forms, including sexual assault and other violence)

Examples of sexual harassment and gender-based harassment:

  • demanding hugs
  • invading personal space
  • making unnecessary physical contact, including unwanted touching, etc.
  • using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
  • leering or inappropriate staring
  • making gender-related comments about someone’s physical characteristics or mannerisms
  • making comments or treating someone badly because they don’t conform with sex-role stereotypes
  • showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
  • sexual jokes, including passing around written sexual jokes (for example, by email)
  • rough and vulgar humour or language related to gender
  • using sexual or gender-related comments or conduct to bully someone
  • spreading sexual rumours (including online)
  • making suggestive or offensive comments or hints about members of a specific gender
  • making sexual propositions
  • verbally abusing, threatening or taunting someone based on gender
  • bragging about sexual prowess
  • demanding dates or sexual favours
  • making offensive sexual jokes or comments
  • asking questions or talking about sexual activities
  • making an employee dress in a sexualized or gender-specific way
  • acting paternally in a way that someone thinks undermines their self-respect or position of responsibility
  • making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal)

What to do if you believe you are being Sexually Harassed?

  • Tell the person to stop, if you feel safe to do so.
  • Speak to the person’s supervisor.
  • Keep a record of incidents.
  • Make a complaint through your organization’s internal harassment complaint resolution process.

Online Contact Form

Other Resources

Sexual Harassment – Ontario Human Rights Commission
www.ohrc.on.ca/en/issues/sexual_harassment 

Ontario Women’s Directorate – Sexual Harassment Resources
http://www.women.gov.on.ca

Federal Labour Standards
http://www.hrsdc.gc.ca/eng/labour/employment_standards/federal/harassment.shtml

Online Ontario Resources

http://www.vawlearningnetwork.ca/online-ontario-resources/index.html

Harassment in the Workplace: Treasury Board of Canada Secretariat
http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/hw-hmt/phw-bhmt-eng.asp

Advancing Healthy Workplaces
http://www.ccohs.ca/healthyworkplaces/topics/harassment.html

Bullying in the Workplace: Canadian Centre for Occupational Health and Safety
http://www.ccohs.ca/oshanswers/psychosocial/bullying.html

Sexual Harassment (Canada)
https://www.canada.ca/en/sr/srb.html?cdn=canada&st=s&num=10&langs=en&st1rt=1&s5bm3ts21rch=x&q=sexual+harassment+canada&wb-srch-sub=