Workplace Sexual Harassment

Defining Sexual Harassment

The definition of what conduct may fit into the definition of sexual harassment is important for a number of reasons. The first is to understand the term is as it is used in the human rights administrative process. The second is the common law applications which include employment issues such as conduct which may give rise to termination for just cause and constructive dismissal. 1

In 1989, The Supreme Court of Canada defined sexual harassment in an employment context to be:

unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.

The case in question arose from a human rights complaint under the Manitoba statute. These words have, however, been used to define sexual harassment in both common law and administrative cases.

In Janzen, two waitresses employed by Pharos Restaurant had complained about the sexual harassment suffered by them due to the conduct of the cook employed at the restaurant. They had voiced their concerns to owner, who had failed to take any corrective action.

The Manitoba Human Rights Commission had found that they were both victims of sex discrimination, a finding upheld by the Court of Queen’s Bench.

As was the case with the typical legislation then prevalent, the Manitoba statute did not refer specifically to sexual harassment as a ground of discrimination and hence the complaint was founded on gender. 2 The case thus required a finding that sexual harassment was actionable based on gender discrimination.

The Manitoba Court of Appeal reversed and, oddly enough, determined that the offensive conduct in question was based on the personal attractiveness of the two complainants, not gender and hence there was no actionable discrimination. These words appear incongruous in the modern context.

Twaddle J. A. stated that sexual harassment which was based on the “sex appeal” of the complainant did not constitute gender discrimination.

This reasoning seems completely bizarre today, which illustrates the change in social mores, keeping in mind, in fairness, the legal issue before the Court and the wording of the legislation.

This was the case which was presented to the Supreme Court of Canada. On this specific point, Chief Justice Dickson was direct in stating his disagreement:

To argue that the sole factor underlying the discriminatory action was the sexual attractiveness of the appellants and to say that their gender was irrelevant strains credulity. Sexual attractiveness cannot be separated from gender.

The broad definition of sexual harassment set out above by the Supreme Court in 1989 remains an accepted touchstone as of today.

The Ontario Court of Appeal, 3 in overturning a trial award in a wrongful dismissal case, which was defended by allegations of sexual harassment, also looked to the Supreme Court decision in Janzen for guidance and stated the following definition, as was recited in Janzen:

Any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity.

Sexual harassment is a complex issue involving men and women, their perceptions and behaviour, and the social norms of the society. Sexual harassment is not confined to any one level, class, or profession. It can happen to executives as well as factory workers. It occurs not only in the workplace and in the classroom, but even in parliamentary chambers and churches. Sexual harassment may be an expression of power or desire or both. Whether it is from supervisors, co-workers, or customers, sexual harassment is an attempt to assert power over another person.

The employer may assert such a plea against a person who has been terminated due to such allegations of harassment. 4 The plaintiff may be a person who has been accused of such conduct and seeks a remedy such as defamation. The plaintiff may assert that the conduct in question was sufficient to constitute a constructive termination and sue civilly.

By and large the definition remains the same, “broadly defined as unwelcome conduct of a sexual nature”, which affects the work environment.

The legislature of many Canadian jurisdictions has defined sexual harassment in very similar words. The New Brunswick statute uses the definition as sexual harass to mean “engage in vexatious comment or conduct of a sexual nature that is known or ought reasonably to be known to be unwelcome”.

The P.E.I. Employment Standards Act defines sexual harassment to be “any comment, gesture or contact of a sexual nature that (a) is likely to cause offence or humiliation, or (b) that might be, 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 Nova Scotia Human Rights Act defines the offence as (i) vexatious sexual conduct or a course of comment that is known or ought reasonably to be known as unwelcome, (ii) a sexual solicitation is a solicitation or advance made to an individual by another individual where the other individual is in a position to  confer a benefit on, or deny a benefit to, the individual to whom the  solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome, or (iii) a reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.

Some jurisdictions, such as B.C., 5 do not offer any statutory definition at all and use the words of the Supreme Court of Canada as above. 6 B.C. simply states the law that sexual harassment is adverse treatment due to gender. 7

By and large with occasional niceties, the law in the human rights remedy is the same in each jurisdiction.8 In each instance the meaning of the term emanates from the Supreme Court decision.

The process of making a complaint under the relevant statute is reviewed here.