May 16, 2017
Workplace harassment is very high profile in the news right now, but do you know what it involves?
Harassment is typically a very personal issue, involving circumstances where an individual feels they have been singled out for unfair treatment. Harassment might be personal or sexual in nature, or both. It can occur as a single, serious incident, or result from repeated incidents of a more subtle nature. The conduct or comments that constitute harassment generally serve to humiliate, intimidate, exclude or isolate certain individuals and are often accompanied by threats or promises regarding opportunities or working conditions.
Harassment does not have to be intentional to be against the law. This means that even where a person does not intend their actions to be harassing, it still may amount to harassment according to the law.
Harassment based on one or more of the prohibited grounds constitutes discrimination protected by the Human Rights Code (the “Code”). The prohibited grounds include:
|· Indigenous identity
For more information on the protected grounds, see Defining Discrimination and the Proscribed Grounds.
However, it is also important to note that employees may allege that they have been harassed without any reference to a protected ground under the Code. When this occurs, the employee will have to seek recourse in forums other than human rights legislation (i.e. company policies or collective agreement). In other words, employees need not be “discriminated” against pursuant to the Code in order to feel aggrieved by the manner in which they have been treated while at work.
Notwithstanding the above, the most common forms of harassment are typically broken down into two general categories: personal harassment and sexual harassment. While there is a great deal of overlap between the two categories, each is dealt with separately below.
While there is no single definition of personal harassment, the various common alternatives include:
- objectionable conduct or comments, deliberate gestures, questions or representations which are uninvited or unwelcome; or
- other behaviours that ought reasonably to be known to be unwelcome;
- which are directed towards a specific person or persons;
- which serve no legitimate work purpose; and
- which have the effect of creating an intimidating, humiliating, hostile or poisoned work environment.
To establish harassment, the complainant must show that a reasonable person in the complainant’s position would have perceived the conduct or comments as harassing. Furthermore, the complainant must show that a reasonable person in the alleged harasser’s position would have known — or ought to have known — that the behaviour was unwelcome.
The various definitions of sexual harassment include the following elements:
- unwelcome conduct of a sexual or gender-based nature (i.e. inappropriate touching, offensive jokes or remarks, or displaying sexually offensive pictures);
- which includes offensive or humiliating behaviour related to a person’s sex;
- which detrimentally affects the work environment;
- which leads to adverse work-related consequences;
- which creates an intimidating, hostile or poisoned work environment; or
- which could reasonably be interpreted as placing sexual conditions on a person’s job or employment opportunities.
Like personal harassment, sexual harassment may be experienced by people of any sex or gender and may occur between people of the same or different sexes or genders.
To establish sexual harassment, the complainant must show that a reasonable person in the complainant’s position would have perceived the impugned conduct or comments as offensive and sexual in nature. In such circumstances, the complainant need not demonstrate that he or she expressly objected to the conduct in order to prove it was unwelcome.
If an employee is diagnosed with a mental disorder caused by bullying or harassment at work, they may be eligible for a workers’ compensation claim under Section 135 of the Workers Compensation Act.
Information provided by Ryan Anderson and Natasha Jategaonkar, employment lawyers with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.