Is that Sexual Harassment?: “Accidental” or Casual Sexism and the Human Rights Tribunal

Sexual harassment continues to occur in the modern workplace (and in schools, and in churches, and on our streets…everywhere!). In a Canadian Women’s Foundation study  43 per cent of women said that they had been sexually harassed at work. Many of these women never report their experience to a supervisor or make formal complaint, let alone file an application at the Human Rights Tribunal. Sometimes, that’s because they (or their support systems) brush off their experiences as “not that serious” or “common” or “not worth complaining about”.

CW: sexual harassment and sexist language.

WHAT DOES THE HUMAN RIGHTS TRIBUNAL SAY ABOUT SEXUAL HARASSMENT?

In Canada our definition of illegal sexual harassment has changed over the years. Judges and other decision-makers used to look for very serious conduct (like sexual touching) or a sexual intent. Today, however, we recognize a broad range of inappropriate and discriminatory workplace behaviour as illegal. We also know that people of all genders can be sexual harassers or be sexually harassed. And, you can sexually harass some one without being sexually attracted to them: it’s about power.

Most Ontario employees are protected by the Ontario Human Rights Code’s ban on sex discrimination and sexual harassment. Others are covered by the Canada Human Rights Act.

Canadian human rights tribunals define sexual harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” because of a person’s sex or gender. Generally, that means repeated unwelcome behaviour (for example, one inappropriate joke might not break the law). However, some misconduct is so serious that a single occurrence breaks the law (for example, a boss demanding sexual favours).

Common Forms of Sexual Harassment and Gender Discrimination

While demanding sexual quid pro quo and sexual assault in the workplace are clearly illegal, some more common misconduct can also amount to sexual harassment or sex discrimination. This conduct might be brushed off or considered “hard to prove”. For example:

• Leering or staring at an employee
• Demanding hugs from a co-worker or invading their personal space
• Making gender-related comments about an employee’s physical appearance
• Penalizing women for not conforming to sexist stereotypes (i.e. for “acting like a man”)
• Asking about an employee’s sex life or a boss bragging about their own sex life
• Using derogatory language about women or making sexual jokes at work
• Patronizing women in the workplace

These types of behaviours can become a violation of an employee’s human rights when they are extreme, repeated or common in the workplace. For example, when an employer permits a “poisoned working environment” or “toxic workplace” by not addressing sexist behaviour.

CONSEQUENCES FOR SEXUAL HARASSERS AND THEIR EMPLOYERS AT THE HUMAN RIGHTS TRIBUNAL

Employers who don’t take these less obvious forms of sexual harassment serious can face significant consequences at the Human Rights Tribunal. These consequences can be even more serious when they dismiss the victim.

“Sexual Harassment?? It Was an Accident!”

In a 2010 case a single mom complained about sexual harassment, sexual solicitation, poisoned work environment and reprisal in her workplace after being fired. Her harasser’s behaviour included leering at her and other women, ‘accidentally’ bumping into her or touching her unnecessarily, inappropriate comments about other women and an unwanted neck massage. The employee objected and reported her harasser to human resources. Although other women had complained about the same co-worker in the past, the employer responded by attacking the complainant and her understanding of sexual harassment law.

Her employer argued that the behaviour wasn’t sexual – and that her termination had nothing to do with her complaint. The Tribunal agreed that the employer dismissed her because of poor performance, but objected strongly to her treatment on the job.  They found in favour of the complainant and held the employer and the harassing employee jointly responsible for $30,000 in damages. In addition, the Tribunal ordered the Employer to change its harassment policy and provide discrimination training to all of its managers.

“It’s Not Sexist if She is a Bitch”

In a 2011 decision the Human Rights Tribunal found in favour of an employee who alleged that she was harassed for not conforming with her employer’s sexist stereotype of women. The complainant was a real estate agent whose co-workers called her a “bitch” and a “c***” and with other gendered insults, because they found her difficult to work with. In addition, they spread rumours about her ethics and sex life. The Human Rights Tribunal found that her treatment at work included sexual harassment and created a poisoned working environment. The Tribunal further found that the employer had dismissed the complainant for discriminatory reasons. The employer was ordered to pay $30,000 in general damages.

Resources & Cases Cited:

• Harriott v. National Money Mart, 2010 HRTO 353 CanLII
• Farris v. Staubach Ontario Inc., 2011 HRTO 979 (CanLII), CanLII
• Ontario Human Rights Commission, Sexual Harassment and the Human Rights Code