Isn’t harassment just a matter of opinion?
No. Because of variances in life experiences, different people may have different perceptions of what harassment is, but we can still develop some common understandings. Any unwelcome behaviour that demeans, humiliates, or offends a person, or puts sexual conditions on a person’s job, is harassment.
Harassment is not just one thing. It is a continuum of behaviours that run from comments, jokes, name calling and offensive displays all the way to criminal assaults (sexual and physical) and, in extreme cases, to “criminal harassment”.
What is not harassment?
Two or more employees bantering back and forth is not harassment if everyone involved is in agreement. But if any employee feels uncomfortable with this behaviour, and the behaviour continues even after that person has expressed his or her discomfort, or if the others involved should have known the person was uncomfortable, then it is harassment. This type of harassment can create what is known as a “poisoned work environment,” where employees do not feel safe and feel constantly humiliated.
Management and supervisors are expected to know that the worker may not object to the behaviour but feels coerced into accepting it because they think the other person has more power in the workplace than they do. This can also be seen as harassment.
Normal workplace discipline is not harassment. This includes requiring employees to follow (reasonable) employer policies, correcting the conduct of employees, counselling employees on job performance or conducting normal performance reviews. That does not mean, of course, that employers or supervisors can carry out workplace disciple or counselling in a demeaning or humiliating way or use it as an excuse to discriminate against an employee.
What if everyone else in the workplace is comfortable with the behaviour?
People react to behaviour in different ways. A person may think her or his conduct is welcome or innocuous, when in fact the recipient is offended by it, but is going along with it to avoid a confrontation or further humiliation. This can happen especially where there is a difference in age, racial or cultural background, seniority, level of authority, or personal power between those concerned. Sometimes people feel they have to join in to avoid being ostracized, victimized, or teased by their peers.
How does a person know what behaviour is unwelcome?
Sometimes a person can say directly that something that is offending or humiliating. Other times, we have to be aware of non-verbal messages and clues. If someone looks embarrassed or hurt, turns away, leaves the room, or avoids another, chances are they do not welcome certain behaviour.
The courts have created the “reasonable person” rule; in other words, we assume that a reasonable person would know that certain types of behaviour are unwelcome. For example, a reasonable person would know that asking for sexual favours, and threatening someone’s job if they do not comply, is unacceptable. In cases like this, the courts may presume the behaviour was unwelcome, even if the complainant has never said “no” or “stop,” and seemed to go along with the situation.
Employers should be aware, however, that Courts or Human Rights Tribunals do not always strictly follow an objective (“reasonable person”) standard. As a practical matter, they often put themselves in the shoes of the complainant and ask, “How would I feel if this happened to me?”
What if colleagues want a sexual relationship?
A relationship where both people are involved of their own free will is not harassment. However, if one person decides to end the relationship, the other does not have the right to insist, or to continue the sexual attention. And managers should be cautious when getting involved with workers, especially anyone who is under their supervision. The imbalance of power may mean that the worker has not actually consented, but feels coerced into the relationship.
What if the employer doesn’t know harassment is taking place?
Only employers can really prevent harassment in the workplace. So the ultimate responsibility rests with them. The law says that even an employer who didn’t actually know about the harassment is still responsible, if he or she should have known it was occurring. If an employer can show that he or she took all reasonable steps to prevent and deal with harassment, the legal and financial consequences may well be less severe.
For that reason, an Harassment Policy, with a clear statement that harassment will not be condoned or tolerated by the employer is essential for all employers, regardless of their size or the nature of their business. Employers who do not have a formal Harassment Policy in place run the risk that they will be perceived as condoning or tolerating harassment in their workplace or have created a “poisoned workplace”.
Can it be harassment if it only happened once?
Yes. Frequently, harassment is a series of incidents and the older case law used to speak of harassment as being a “pattern of behaviour”. However, more recent cases have held that even something that only happens once can be harassment, in certain circumstances.
What if the harassment takes place outside the workplace, or after regular work hours?
Any place or time that people are gathered for work-related reasons is still considered part of the “Workplace”. This includes business travel, conferences, telephone calls, company social gatherings, and job interviews. Harassment is not permitted in any of these situations, and employers are responsible for dealing with it in these circumstances.
Increasingly, harassment complaints involve the use of social media. This can occur at the workplace, using company computers, or after hours, using personal computers and devices.
What if I didn’t mean to harm or offend anyone?
Even the best intended comment or action may be harassing, if it is unwelcome or offensive to another person. As a matter of law, harassment is not about a person’s intent. This cannot be over-emphasized. It is about how the behaviour affects the victim. You may only have intended to be funny, for example; but if someone else is humiliated by what you did or said, you may have harassed them without meaning to.
What if someone at work tries to retaliate against a complainant?
Retaliation is against the law. Retaliation against anyone involved in a complaint under Human Rights laws may have serious consequences. Generally, the penalties for retaliation are the same as for the original harassment, and may be even more severe.
What does the employee’s “Family Status” have to do with harassment?
It is illegal under the Human Rights Act for an employer to discriminate against an employee because he or she in a parent-child relationship. If an employee is disadvantaged because of a significant conflict between his/her parental obligations and his/her job, the employer has a duty to accommodate that employee. If, for example, the employee can’t work at night or weekends because of legitimate child-care issues, the employer is usually obligated to accommodate that in her schedule. If the employer or others in the workplace criticize or demean that employee for that, that would amount to harassment under the Human Rights Act.
“Family Status” is a complex and evolving area of Human Rights law and employers should seek specialized legal advice.
What if an employer doesn’t deal properly with a problem of harassment?
An employee who feels her or his concerns have not been properly addressed has the right to contact the appropriate human rights commission or other organization. If an outside agency determines that harassment has taken place, the employer may face financial or other consequences: giving an apology, compensating the complainant for lost wages and injury to self-respect, or human rights training, for example. The exact remedy will depend on the complaint.
Employers should understand that the investigation of complaints is extremely intrusive, time-consuming and expensive. Human Rights investigators have the power to require that the employer produce any and all documents that they consider relevant and they can, and will, interview employers, managers and business owners, often at length, during working hours. There is little an employer (or a lawyer) can do about that.
That is why is it best for all employers to have Workplace Harassment policies in place that are designed to ensure that such matters can be adequately and properly addressed “in house”. It is too late to wait until a Human Rights complaint is made to decide to look into an Harassment Policy.
What happens if the police are involved?
Physical and sexual assault are criminal offences. So too is “criminal harassment”. If the harassment involves physical or sexual assault, or if it may have crossed the line into “criminal harassment”, the police will conduct a criminal investigation and lay charges as appropriate. Employers will often not know that the police are investigating until they show up at the workplace, usually with Search Warrants. Employers should immediately go to a private phone and speak with legal counsel with specialized knowledge this area of the law.
Employers should understand that the law defines “assault”, in essence, as “the least touching without consent”. If the assault is committed for a sexual purpose, it is a sexual assault. The Criminal Code states that an assault can be committed by “acts or gestures”.
This article is for general information only. For advice about your own case please contact me.
Sources: Adapted from Canadian Human Rights Commission, “Anti-Harassment Policies for the Workplace: An Employers Guide” (2007); NS Human Rights Commission, “Guide to Human Rights in the Workplace” (2009), and “Interpreting Family” Status (n.d.).