Me Too, Now What? Responding To Ontario Workplace Sexual Harassment

Sure, sexual harassment is illegal. But what can you do about it? One reason I feel so strongly about women’s rights at work is because I’ve faced sexual harassment on the job, too. As a young woman, long before the #metoo and #timesup campaigns (or the invention of hashtags!) I didn’t know where to turn or what to do. I didn’t even have the vocabulary to describe what had happened to me. As a human rights lawyer, I’m able to provide other workers with the tools to fight back and remove themselves from a bad situation.

WHAT IS SEXUAL HARASSMENT? 

The term “sexual harassment” can capture a lot of different treatment. Common examples of problematic workplace behaviour include:

• Sexual jokes
• Sharing sexualized pictures or videos
• Inappropriate comments on your body or appearance
• Unwelcome touching including sexual assault
• Seeking a sexual or romantic relationship in exchange for job security or promotions

Sometimes, a single comment or action is bad enough to be considered sexual harassment. Other times, bad behaviour isn’t illegal sexual harassment unless it becomes a pattern. For example, often a single inappropriate joke won’t be sexual harassment. But, if your boss or co-worker repeatedly makes sexual jokes, it becomes a problem – especially if it continues after you tell them that it makes you uncomfortable.

Being forced to overhear inappropriate jokes or comments, can be grounds for a sexual harassment complaint, too. Ontario law recognizes that you don’t need to be the specific target to be harmed by sexual harassment at work. Unchecked discriminatory comments or behaviour at your work can create a “poisoned environment”, which can have a negative impact on all members of the targeted group on your team.

Sexual harassment disproportionately affects women and trans folks, but people of all genders and sexual orientations can be harassed or be harassers. Don’t let preconceptions about harassment keep you from demanding better at work.

WHAT CAN I DO ABOUT IT?

This decision is very personal. If you’re thinking about taking action, consider talking to a human rights lawyer or your union to get advice about your specific circumstances first. Here are a few options:

File a Harassment Complaint at Work

Ontario employers must have a workplace violence and harassment policy in place. Unfortunately, many don’t – or else they have policies which fall short. If your employer has a policy in place, filing a complaint should trigger an investigation to find out whether your allegations are true and, if so, what steps can be taken to keep you safe and work. A good investigation is reasonably confidential and prompt. Barring unusual circumstances, the investigation should wrap up within 90 days.

File a Grievance

If you’re unionized, your collective agreement likely has a provision that addresses discrimination and harassment, as well as a grievance procedure that includes both alternative dispute resolution and arbitration options. Talk to your Union Steward or Union Representative about whether filing a grievance makes sense for you.

File a Human Rights Tribunal Complaint

The Ontario Human Rights Code bans discrimination on the basis of sex, sexual harassment and ‘sexual solicitation’ (seeking a sexual or romantic relationship in exchange for something) at work. Employees facing sexual harassment or sexist discrimination on the job can file a Human Rights Application seeking compensation, including lost wages and general or human rights damages. The Tribunal can also order employers to take measures to prevent future abuse, including human rights training (aka “sensitivity training”).

Constructive Dismissal

Your employer has a duty to provide you with a safe, harassment-free workplace.

Most of the time, employees who quit their jobs walk away with nothing. Generally, you can’t get a ‘severance package’ if you resign. But, the law recognizes an exception when an employer’s behaviour is so bad that you have no choice but to quit. This is called “constructive dismissal”. These cases pose legal challenges, but employees who can prove that they were constructively dismissed obtain the same damages as a wrongfully dismissed employee. If the constructive dismissal arose because of sexual harassment, you could also be entitled to human rights or general damages.

CAN I GET HIM FIRED?

In short: maybe!

Ontario courts, human rights tribunals and labour arbitrators don’t have the power to order an employer to fire some one. However, your employer has a responsibility to protect employees from harassment and may choose to dismiss an abuser. Canadian courts have upheld dismissals for sexual harassment where the misconduct was serious, and the employer had appropriate policies in place or warned the harasser that his conduct was unacceptable.

A judge is more likely to uphold a decision to dismiss a harasser who is high-level employee who ought to know better or is abusing their power. Unfortunately, this isn’t always the case: employers are sometimes ordered to pay damages even if they fired some one for sexual harassment. Generally, both employers and the legal system are becoming less tolerant of sexual harassment in the workplace.

RESOURCES

• Human Rights Code at s 5, 7(2)-(3)
• Occupational Health and Safety Act at s 32.0.1