The myriad of issues in a sexual harassment case, civil or human rights are reviewed here.
Fundamental Test
The classic test to be met by the successful applicant in a workplace sexual harassment complaint is to show: 1
- An employment relationship; and
- Conduct which was unwelcome, when assessed objectively; which
- Emanated from an employee or agent of the employer;
- Or from the directing mind of the legal entity which was the employer; 2
- The harassment was connected to the workplace, and
- 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
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. 10.
Power Imbalance
The issue of the inherent power imbalance in a workplace environment is often considered an issue in the analysis of this issue.11
No Need for Timely Response
Frequently the complaint from the victim is not uttered contemporaneously with the event. Many courts have noted that the reason for this is because the accuser often may be in a vulnerable position and reluctant to speak out against her aggressor. 12
Recognition has been given to the other means that the victim often shows their discomfort to the offensive action, including “nervous laughter, silence, or avoidance of the harasser”.13
Indeed, conduct which may be seen objectively as “acquiescence” may in fact be the victim’s means of avoiding an escalation.
The same observation was made in an Ontario decision, 14 confirming that the victim of abuse often suffers silently under the fear of losing her employment. The statement made by the offender that he considered his conduct was “welcomed” to the lack of an immediate complaint has been found to be “incredulous” and far from the realities of sexual harassment. The court noted that “recipients of harassing behaviour” …. “oft times cannot immediately express how distasteful or offensive they find their treatment, because of fear of repercussions in the workplace, the ultimate fear being that they will be terminated.”
The judge 15also was very critical of the theory advanced that the victim must complain to create an obligation on management to act. This argument perpetuates the very problem that the law wishes to outlaw.
Poisoned Workplace
In a proper context, a co-worker may be able to assert that he believed his colleague had consented to such conduct as sexual banter and that hence the questioned conduct could not be reasonably seen as “unwelcome”. Such a defence is not available to management employees upon whom a higher standard is imposed to ensure the workplace is free of such inappropriate conduct. Such conduct goes to the issue of a poisoned work environment 16and also personal liability of the management staff. 17 18.
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. 19The questioned conduct need not relate to a direct touching or a demand for sexual favours in exchange for promises of improved work benefits. 20It may be subtle, obvious, verbal or nonverbal. It may be physical or psychological. 21It may be found in “more subtle conduct such as gender based insults and taunting”, 22which 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 23made on one unique occasion have been found to suffice to be a violation of the Ontario Code. 24Repeated conduct is not necessarily required if the offensive remark is “clearly demeaning”. 25Similarly a finding that the wrongdoer had “flicked” the nipple of the complainant, 26or exposed himself to a co-worker, 27both on singular occasions, have been seen, naturally enough, as code violations.28
he 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” 29 could allow for no other result. Such conduct is clearly offensive and should not be tolerated.
Changing Times
The Court of Appeal observed that modern case law must reflect societal changes in attitude to this issue.
The same decision raised an important distinction in a case involving just case allegations to defend a wrongful dismissal claim. The question to be answered, the court stated, was whether the conduct was “nevertheless unwelcome”, even though consented to.
The issue arose in the context of an alleged consensual relationship between a management person and his subordinate employee. Presumably this means that in such a relationship, even though the apparent conduct of the employee would reflect consent, it was behaviour which was tolerated as opposed to welcomed due to the position of economic dependency. This represented a fundamental distinction in the examination of a workplace “consensual” romantic relationship, given a power imbalance.
The Court stated that the responsibilities of a person as a manager require him or her to be mindful of the adverse consequences of his conduct as it may impact other employees and the workplace.
It is clear that the court was addressing the consensual romance as one which should be not allowed, given the potential impact on the specific employee and the workplace at large. This was a watershed decision on an important aspect of everyday employment life.
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 will likely not support a constructive dismissal allegation or a poisoned work environment, 30 using the vocabulary of the human rights process.
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. 31
In assessing the seriousness of a particular instance of sexual harassment, it is necessary to develop a context. Clearly there is a scale or continuum of seriousness from the relative 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.
The prevailing theme of a new moral order was repeated in the decision of the Divisional Court 32 reviewing an arbitrator’s award under the terms of a collective agreement reversed the arbitral award of suspension and reinstatement and found that termination of employment was the appropriate remedy.
Safe Workplace
The decision spoke strongly of the employer’s need to provide a safe work environment, particularly with reference to the recent amendments to the Occupational Health and Safety Act of Ontario. It is reflective of a more strict approach to conduct of sexual harassment in a modern work environment:
Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour. The legislature has reinforced these obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace
This issue of society’s changing view of what may be offensive conduct is an important consideration. Times indeed do change and court and tribunal decisions certainly reflect such shifting mores.
Liability Issues
The remedies for sexual harassment are somewhat complicated as to whom should be responsible for the wrongdoing. This varies from jurisdiction to jurisdiction.
Sexually harassing behaviour may be direct or subtle. An example of a direct act is verbal or physical behaviour. It can be subtle such as the deprivation of a right or loss of any opportunity due to a negative response to sexual solicitation.
Also such behaviour can lead to a poisoned work environment.
In most jurisdictions, in all but Ontario, the employer will be responsible for all workplace sexual harassment violations, 33subject to the noted exceptions which follow.
Due Diligence
In certain jurisdictions, the employer is allowed a “due diligence” defence by the relevant statute.
Manitoba has enacted legislation which defines the concept of employer liability for the acts of its employees. Provided that the conduct was in the course of employment, the employer is deemed responsible. The employer may, however, show a defence by proving (1) it did not consent to the conduct and (2) took all reasonable steps to prevent it and (3) then took all reasonable steps to minimize or avoid the effect of the offensive actions.
The substance of this provision is repeated in the legislation of the Yukon.
Essentially the federal legislation now allows for the same “due diligence” defence to be raised against the assertion of vicarious liability. The employer must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent event and (3) did all it could to minimize or avoid the adverse consequences.
New Brunswick has similar legislation with respect to a complaint of sexual harassment, which deems the actions of the employee to be those of the employer, and then allows the employer a defence of showing it used due diligence to prevent such conduct. 34
All remaining jurisdictions make the employer responsible for the acts of workplace human rights violations. 35
Personal Liability
Apart from the above methods of making the employer responsible, or not, for such sexually harassing behaviour, the employer is always accountable and liable when the offensive actions are taken by the “directing mind” of the company. Such individuals are also liable personally.36This is referred to as the “organic” theory of corporate liability.