Employers are responsible for providing a workplace environment that is free of sexual harassment. It is your employer’s responsibility to take action when harassment occurs. An organization has a legal duty to respond to a complaint of sexual harassment, and may be found liable for not doing so, even where the complaint is ultimately not made out.
What is sexual harassment?
Sexual or gender-based harassment is a form of discrimination. It involves any unwanted physical or verbal behaviour that offends or humiliates you. Most human rights legislation and collective agreements define it as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” A single, serious incident can also be considered harassment.
Human rights legislation also prohibits “payback” or reprisal where a person raises issues or complains of sexual harassment, such as hostile behaviour, excessive scrutiny, social exclusion or other negative behaviour because someone has rejected a sexual advance.
The prohibition against sexual harassment “in employment” is understood very broadly. Employment includes the application and interview stage, volunteer work, internships, offsite work-related obligations, and any conduct which has work-related consequences, such as co-workers or managers using social media to target you.
You may be more vulnerable to sexual harassment if you identify by other protected human rights grounds, such as race, gender identity, sexual orientation, or disability. Also, sexual harassment can have a worse effect if it is combined with discrimination or harassment based on other personal characteristics protected by human rights legislation.
What can I do to get help?
While the harassment is happening, try to keep a written record of the incidents. Make sure to include the actions, conversations, dates, times, locations and people involved. This will help keep your memories fresh and establishes an important contemporaneous record.
If you have experienced or observed sexual or gender-based harassment, you can try to resolve the problem through the policies or resolution mechanisms your organization has in place. This reporting can be done formally, where policies or grievance procedures exist. But you can also take action informally, by seeking support or requesting advice from someone you trust. If other people you know at work have experienced similar behaviour, then you can speak to Human Resources or make a report together.
Your coworkers who witness the inappropriate behaviour are bystanders. Bystanders may provide effective assistance. Their support can be enlisted to intervene during or following an actual event. Responses can include reporting the problem on your behalf, supporting you in making a complaint, or confronting the harasser.
Note that using an internal complaints process does not usually replace your right to file a human rights claim, or to proceed in other legal forums.
All collective agreements should have built-in and prioritized human rights protections, including the right to be free from sexual harassment. Your union should be able to provide you with information and support. You should first contact the person listed in your workplace anti-harassment policy or your union steward.
You can initiate a grievance against a unionized or non-unionized co-worker including a manager. Where the grievance involves another unionized employee, both parties will receive union representation.
A union representative can accompany you during the investigation process, at mediation, or other meetings that take place between management, the respondent and yourself.
As a result of the grievance, the harasser may be disciplined, required to provide an apology, compelled to participate in training or counselling, be suspended, demoted, transferred or fired.
Usually, you cannot pursue both a grievance and proceed with a human rights claim, because you need to choose one forum over the other.
Workplaces should have policies in place that state how internal complaints will be handled. Internal policies usually ask that you tell the person targeting you to stop the unwelcome behaviour. Good policies will also tell you some or all of the following: who to complain to; the parameters around confidentiality; what protections you have from reprisal or threats or reprisal; the mechanisms available for investigation of the resolution of a complaint; and, how long the process will take. Action by managers should be taken promptly after you report.
Remedies in non-unionized environments can also include disciplining the harasser, apology, a mediation, or facilitating a transfer or schedule changes to minimize or end your exposure to the harasser.
Note that reporting according to an internal policy will not typically replace your right to pursue legal processes. If you are dissatisfied with what your employer has done to put a stop to the harassment and resolve the situation, you can file a human rights claim or chose another legal forum, listed below.
What will the consequences be if I report?
Ideally, while the investigation or complaint process is ongoing, the employer should take steps if it is not appropriate for you to continue working with the person/people being complained about.
A complaint is very often resolved or settled before it is heard by a decision-maker such as an arbitrator or an adjudicator. Monetary compensation, apologies, workplace transfers or safety plans may all flow from a settlement agreement.
If a complaint does not settle, and proceeds to a hearing, decision-makers often find organizations liable, and assess damages based on the organization’s failure to respond appropriately to address discrimination and harassment. An organization may respond to complaints about individual instances of discrimination or harassment, but they may still be found to have not responded appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that condones sexual harassment, despite punishing the individual harassers. If so, organizations must take further steps, such as training and education, to address and eradicate the problem.
Other legal recourses:
- You may be able to make complaints or report under your province’s occupational health and safety legislation. Health and safety laws now impose requirements on employers with respect to workplace violence and harassment. Making a report would not result in monetary compensation, but Ministry of Labour inspectors may check to ensure employers, supervisors and workers are complying with workplace violence and harassment requirements. They may do this as part of a general inspection of a workplace or when investigating a specific complaint or incident.
- You can also make a complaint against your employer and/or the perpetrator to your province’s human rights body or with the Canadian Human Rights Commission, regardless of whether you are unionized or not. Human rights damages are meant to be remedial instead of punitive. Other remedies may include getting wages you lost and/or a reference letter if you had to quit your job, or getting your employer to agree to do more training on preventing and dealing with workplace harassment.
- A civil suit is also an option for non-unionized employees. Civil courts apply a lower standard of proof than criminal courts. This means that it is easier to prove that you were sexually assaulted in civil court than in criminal court. You must show that it is more likely than not that the perpetrator committed the act. If you win or settle your civil case, you will receive damages to compensate you for the physical and emotional consequences of the sexual assault.
- Both unionized and non-unionized employees can also turn to the criminal law. Sexual harassment can reach the level of a criminal offence. It is a crime if the harassment involves attempted or actual physical assault, including sexual assault, or threats of an assault. Stalking is criminal harassment. Where sexual harassment includes any of these things, you can contact police. The police will investigate and, if they have enough evidence, they will lay charges. It is the police and not you who decides to lay charges. The police will need to speak to you again to collect information from you. You should be prepared for them to contact you. Tell them if you are uncomfortable answering their questions. You may want to tell them why. You do not have to answer questions about your sexual history. You could get an advocate from a shelter or assault crisis centre to come with you for support.