What is workplace sexual harassment?

Sexual harassment and sexual assault are topics at the forefront of social discussion as of late -  and for good reason - sexual harassment and sexual assault are experienced by most women and many men.

Unfortunately, sexual harassment at work is all too common and women and men find it difficult to report such incidents due to the stigma attached to both experiencing and reporting such behaviour, fear of reprisal, the shame that one feels after being demoralized and abused, and the inability to report the behaviour to someone trustworthy, especially when the harasser is a person in a position of power, such as an immediate supervisor, among other reasons.

WORKPLACE SEXUAL HARASSMENT DEFINED

Sexual harassment in Ontario is considered a violation of both the Human Rights Code ("Code") and the Occupational Health and Safety Act ("OHSA"). In some instances, it may be considered a criminal act under the Criminal Code of Canada, if the act includes a physical element, elevating it to sexual assault.

CODE DEFINITION OF WORKPLACE SEXUAL HARASSMENT: 

Harassment because of sex in workplaces

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.  

Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. 

OHSA DEFINITION OF WORKPLACE SEXUAL HARASSMENT: 

“workplace sexual harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; (“harcèlement sexuel au travail”)

WHEN THE HARASSER IS IN A POSITION OF POWER

Sexual harassment often occurs at the hands of those in power (or seeking power), making it even more difficult and stressful for victims to report the incident. Power imbalances create an additional level of fear and often create situations that allow for the impunity of the harasser. In many instances, power imbalances encourage those in power to threaten retaliation in an effort to encourage victims to maintain secrecy of the inappropriate behaviour or offer a benefit in exchange for silence. The power imbalance may create a situation that discourages a victim from reporting the behaviour out of fear of reprisal or other repercussions when, for example, the authority figure is well-liked or regarded within the organization; this elicits a fear related to how co-workers will react, including fear of retaliation, bullying and being ostracized for reporting the violation. 

To whom do victims report allegations if a superior is the one alleged to be engaging in sexual harassment?

OHSA requires that employers include measures and procedures in policy for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. This may include a procedure based on the hierarchy of the organization, which should be defined in policy and/or may include a third party reporting mechanism when those at the top of the power structure are the alleged harasser and/or could be in a position of real or perceived bias or conflict of interest. 

For small businesses without an internal Human Resources department ("HR") or Union, it becomes very difficult for employees to know where to turn when their supervisor is the one alleged to be engaging in harassing behaviour and/or when there is real or reasonably perceived fear of reprisal for reporting the alleged behaviour, especially if such procedures are not clearly defined in policy, there is perceived bias or conflict of interest between the person to whom one presumes they should report the behaviour and the alleged harasser, and/or there is a resulting concern related to privacy and/or confidentiality based on circumstances within the workplace.

As an employer, it is advisable to have a well-defined complaint process enshrined in company policy that is easily accessible to employees and accounts for situations where the alleged harasser may be in a position of power or authority over the victim. In fact, OHSA requires that company policy include a third party reporting mechanism, including provision for whom should receive and/or handle a complaint that is against the employer or supervisor. It is recommended that policy and procedure highlight the respect for confidentiality, within the parameters of the law, and that the workplace takes such violations seriously, as required in OHSA. This helps to ensure the victim feels safe reporting the behaviour.

Sexual harassment is a very sensitive issue, eliciting a number of reasonable emotional reactions. It is imperative that the person receiving, handling, investigating and/or addressing the allegations and/or complaint be experienced in managing allegations of this nature delicately while preserving the respect and dignity of both the victim and alleged victimizer.  LJHRC is experienced in handling complaints and acting as an external reporting mechanism to ensure employers are meeting their legal obligations and employees feel safe and comfortable reporting allegations to someone other than a direct supervisor alleged to be the harasser.

Investigators must be competent, diligent and experienced. LJHRC can act as an external investigator when a business does not have an internal HR department to handle such complaints. LJHRC is experienced in investigating and addressing complaints of workplace sexual harassment and can conduct neutral investigations on behalf of the employer, while maintaining the dignity and respect of all involved.

Contact LJHRC if you would like to discuss whether we can assist your business as a third party reporting mechanism and/or third party investigators to handle sexual harassment allegations in the workplace.