What is the test for workplace harassment?
What is the definition of workplace harassment?
Workplace harassment is defined in the Occupational Health and Safety Act. It means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Workplace harassment includes both psychological harassment and personal harassment.
There is no definition articulated in the Human Rights Code. However, there are protections in the Code that prohibit harassment in a variety of contexts. The Courts have established the same test in the case law as outlined in the OHSA.
Harassing comments or conduct typically happen more than once. They could occur over a relatively short period of time or over a longer period of time. However, there may be situations where the conduct happens only once and is sufficiently serious as a stand alone incident to amount to harassment.
What is the test for workplace harassment?
The test for workplace harassment is therefore, whether the Respondent’s conduct was “vexatious” and “known or ought reasonably to be known to be unwelcome.” In making this determination, an objective standard is used. The Human Rights Tribunal of Ontario articulated this standard in Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 (CanLII), as follows:
“The standard is what the perception of a “reasonable person” would be, considering the perspective of both a reasonable person in the applicant’s position, and a reasonable person in the individual respondent’s position. See Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43-48.”
However, there is both a subjective and objective component to the reasonable person test. The subjective component includes the harasser’s own knowledge of how his or her behaviour would be received. The objective component considers how a “reasonable” independent participant would receive the alleged behaviour. As such, an investigator can conclude on the basis of the totality of the evidence that an individual knew, or should have known, that his or her actions were unwelcome. The response of the complainant may be indicative of the unwelcome nature even if they do not specifically object to the behaviour. For example, if they walk away.
How to establish harassment
In order to establish harassment, the complainant has the onus of demonstrating, on a balance of probabilities, the following:
(1) The Respondent was the Complainant’s employer or employee of the employer;
(2) The Respondent engaged in a course of vexatious comment or conduct toward the Complainant that was known or ought reasonably to have been known to be unwelcome;
(3) The Respondent’s harassing conduct occurred in the workplace (or is sufficiently connected to the workplace);
(4) A Code-protected ground was a factor influencing the Respondent’s harassing behaviour.
The fourth prong of the test relates to Code-based harassment and is not relevant to workplace harassment under the OHSA, which does not require harassment to be based on a protected ground. The Respondent would have to provide reasonable justification for their behaviour to circumvent a finding of harassment.
What constitutes workplace harassment?
There are a number of behaviours and comments that could amount to harassment including, unwelcome words or actions that are offensive, embarrassing, humiliating or demeaning. It may also include behaviour that intimidates, isolates or discriminates against the targeted individual. A number of factors could impact whether conduct would amount to harassment such as, context. The following is a non-exhaustive list of potentially harassing behaviours, comments or scenarios:
Remarks, jokes, taunting or innuendos that demean, belittle, ridicule, intimidate, or offend;
Displaying or circulating offensive pictures or materials in print or electronic form;
Bullying, isolating or excluding an individual;
Repeated offensive or intimidating phone calls or e-mails; or,
Name-calling, profanity, undermining a person’s integrity.
If you receive a complaint of harassment it is important to take the complaint seriously. If there is insufficient details or you are unsure if the complaint has merit, a preliminary inquiry may be warranted to determine if there is additional information that could point to harassment. If you require assistance, please contact us.