Workplace Sexual Harassment

Proving the Case

Fundamental Test

The classic test to be met by the successful applicant in a workplace sexual harassment complaint is to show: 1

  1. An employment relationship; and
  2. Conduct which was unwelcome, when assessed objectively; which
  3. Emanated from an employee or agent of the employer;
  4. Or from the directing mind of the legal entity which was the employer; 2
  5. The harassment was connected to the workplace, and
  6. The offensive conduct was due to the sex of the victim

All Genders May Apply

It is well known that the remedy is not one uniquely available to females. Any gender may make a complaint as the facts may allow.

While many cases are indeed initiated by women, men certainly may be the subject of harassment. 3Essentially, the field is wide open. Harassment remedies will apply to any permutation of gender mix imaginable. The mission is to keep the workplace free of sexual harassment of any genre.

The Ontario Code, by example, provides protection from harassment due to “sexual orientation, gender identity, gender expression”. 4There is no need, however, for each statute to contain such a protective definition.

The “key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim”, “because of sex” which “captures the concepts of gender, sexuality, and sexual categories, as well as sexual characteristics, and therefore includes sexually-related discrimination and harassment". 5It may be recalled that the seminal decision came from a statute which prohibited adverse treatment due to gender.6

Perception

Similarly, the victim need not prove that he or she truly had the sexual orientation which was the subject of the bullying taunts. 7

Generous Interpretation

In any event, whether or not the name-calling was intended to hurt is irrelevant, since it is the effect of the conduct, or action, not the intent of the harassers, that is relevant in determining whether discrimination has occurred. 8The correct interpretative approach is to avoid a “strict grammatical approach” and apply a broad liberal interpretation.

Unwelcome Conduct

An essential component of the test of conduct which may be said to sexual harassment is that the conduct must be unwelcome. This does not place the obligation upon the victim to state that this is so. The test is whether a reasonable person would see that the conduct was unwelcome, 9that is the questioned conduct was known to be unwelcome or reasonably expected to be unwelcome.

Often the language used in the statute to define “sexual harassment” or “harassment” is vexatious, which means without reasonable or probable cause or excuse; harassing; annoying as stated by the Federal Court of Appeal in Carroll v Canada.

Power Imbalance

The issue of the inherent power imbalance in a workplace environment is often considered an issue in the analysis of this issue.10

Range of Conduct

There is an extensive range of conduct which can be found to constitute sexual harassment under the human rights codes and at common law. 11The questioned conduct need not relate to a direct touching or a demand for sexual favours in exchange for promises of improved work benefits. 12

The conduct may be subtle, obvious, verbal or nonverbal. It may be physical or psychological. 13 It may be found in “more subtle conduct such as gender based insults and taunting”, 14which may be objectively seen as conduct was creates a negative psychological and emotional work environment.

It is clear that one event may give rise to a finding of sexual harassment. A pattern of repeated behaviour is not required. A sexually explicit remark that is clearly demeaning will create a violation of the statute. Offensive comments 15 made on one unique occasion have been found to suffice to be a violation of the Ontario Code. 16Repeated conduct is not necessarily required if the offensive remark is “clearly demeaning”. 17Similarly, a finding that the wrongdoer had “flicked” the nipple of the complainant, 18or exposed himself to a co-worker, 19both on singular occasions, have been seen, naturally enough, as code violations.20

The theory which drives these cases, namely that the offensive conduct must be shown to such that it is “known or ought reasonably to be known to be unwelcome” 21 could allow for no other result. Such conduct is clearly offensive and should not be tolerated.

A Contextual View

The definition of what conduct may be actionable sexual harassment becomes contextual, based on the issue between the parties. A single event of a comparatively minor nature may be actionable as a human rights complaint seeking monetary compensation only or a public interest remedy, yet may not support a constructive dismissal allegation or a poisoned work environment. A good example of such a finding is the decision of the Tribunal in Shroff v Tipco (Muir) in which it was determined that the complainant suffered abusive behaviour by co-workers who taunted him due to his inability to have a child with his spouse. This conduct was actionable as a complaint under the Code, yet not of sufficient substance to allow for the determination of a poisoned work environment.

The offended party must be cautious as to how they respond to the conduct. An assertion that the wrongdoing is sufficiently grave to amount to a repudiation of the working relationship may ultimately be proven to be wrong, even though a code violation has been proven. Such a circumstance may find the victim having proven their case, yet unemployed with a modest compensatory award.

Generally speaking, a single incident will not be sufficient to support a poisoned workplace. There may be an exception for outrageous conduct, but this remains the general rule. 22

In assessing the seriousness of a particular instance of sexual harassment, it is necessary to develop a context. There is a scale or continuum of gravity from a relatively innocuous joke with a sexual connotation through to the opposite end of the spectrum involving direct touching and other conduct which is unmistakably sexual, to acts of sexual violence.