One in four women and 17% of men experienced sexual misconduct while in the workplace in Canada in 2020. Realistically, those numbers are probably higher. Employers are legally required to provide a safe, harassment-free workplace. Nobody should have to endure sexual harassment at work or anywhere else.
As a leading Toronto employment law firm, we want to do our part to educate workers about their rights and how to enforce them and remind employers of their duty to protect the safety of their employees, and their potential liability if they fail to do so.
Disclaimer: The information in this guide and everywhere else on this website is for general information only and is not intended to provide legal advice of any kind. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or by communicating with a lawyer or staff member. If you need legal advice, please get in touch with our staff at Ertl Lawyers. We’re more than happy to speak with you.
Sexual Harassment Definition in Canada
Several laws in Canada define sexual harassment as it applies to the forum they were created to regulate. The laws most commonly used in Ontario to address workplace sexual harassment have almost identical wording to describe it. This is how The Occupational Health and Safety Act in Ontario defines sexual harassment:
a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker, and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.”
What That Means in Practical Terms
The law as written uses the term “engaging in a course of…,” But a single incident can be considered sexual harassment.
The description “vexatious comment or conduct” is not easy to understand. The Ontario Human Rights Commission defines it as:
“actions or words that are annoying, distressing or agitating to the person experiencing them,”
or, putting it another way, that:
“the person complaining finds the comments or conduct worrisome, discomfiting and demeaning.”
Lastly, proving the final part of the offence, that the “comment or conduct is known or ought reasonably to be known to be unwelcome” can be done by showing that either:
- The victim told the perpetrator their behaviour was unwelcome.
- The victim made it clear through their behaviour or body language that the comment or conduct was unwelcome.
- A reasonable person would have recognized that their behaviour would be unwelcome to that specific recipient under the circumstances.
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Workplace Sexual Harassment Laws in Canada
Sexual harassment laws can be categorized into three broad groups when sexual harassment occurs in the workplace: federal and provincial laws governing human rights and discrimination, federal and provincial laws concerning health and safety in the workplace and Criminal Code violations. These are the most common laws applied to workplace sexual harassment allegations in Ontario:
- Canadian Human Rights Act – covers federally-regulated employees and industries and deems sexual harassment a discriminatory act.
- Canada Labour Code – applies to federal employees and makes it the responsibility of employers to prevent sexual harassment.
- Ontario’s Human Rights Code – classifies sexual harassment as discrimination; it applies to the provision of goods and facilities, services, housing, contracts, employment and occupational associations like unions and professional associations in Ontario.
- The Occupational Health and Safety Act in Ontario– covers most of Ontario’s workforce and is focused on worker safety.
- The Ontario Workplace Safety and Insurance Act – most employers in Ontario are required to carry WSIB coverage in case employees are injured at work. The guidelines for WSIB coverage are in the Act, which has a section regarding workplace sexual harassment.
What is Sexual Harassment in the Workplace?
The Ontario Human Rights Commission lists these real-life examples of behaviour that was deemed to be sexual or gender-based harassment (not an exhaustive list):
- demanding hugs
- invading personal space
- unnecessary physical contact, including unwanted touching
- derogatory language and/or comments toward women (or men, depending on the circumstances), sex-specific derogatory names
- leering (inappropriate staring)
- gender-related comment about a person’s physical characteristics or mannerisms
- comments or conduct relating to a person’s perceived non-conformity with a sex-role stereotype
- displaying or circulating pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
- sexual jokes, including circulating written sexual jokes (e.g. by e-mail)
- spreading sexual rumours (including online)
- requiring an employee to dress in a sexualized or gender-specific way
How to Deal with Sexual Harassment in the Workplace
Sexual harassment can cause a number of mental health concerns and emotional stresses, including anxiety, depression, fear, shame and guilt.
If you’ve suffered sexual harassment in the workplace, it’s crucial to keep reminding yourself that it is not your fault. The shock of harassment can cause a “fight, flight or freeze” instinct that may make it difficult to say anything to the perpetrator. If you’re able to confront your harasser, let them know that their behaviour is unwanted and will not be tolerated.
As soon as possible, document the incident while events are still fresh in your memory, especially if the harassment is ongoing. Make note of:
- the actions, words, sounds, gestures, body language, etc., of the harassment
- the date, time, location,
- how it made you feel
- the names of anyone who might have witnessed it
If a bystander was present during the harassment, you can ask for their support to help you confront the harasser or make a formal complaint. It may also be helpful to confide in a friend or loved one and ask them to accompany you if you don’t feel comfortable confronting the perpetrator or filing a complaint on your own.
A detailed record can be beneficial in an investigation and/or legal proceeding. If you decide to report the incident(s) to someone at work, include their response and all resulting actions in your records.
Workplace sexual harassment laws also make “reprisals” an offence, meaning that employers and coworkers can not intimidate, threaten, shun or mistreat someone for filing a complaint.
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Filing a Sexual Harassment Complaint in the Workplace
Your employer has a legal duty to provide a safe work environment. Your workplace should have a formal procedure for filing a sexual harassment complaint that outlines who to speak to, your rights and protections, the investigation process and remedies and disciplinary actions.
Usually, filing a complaint because of sexual harassment in the workplace does not prevent you from pursuing a human rights complaint or legal action at the same time. However, if your workplace is unionized, you may have to choose between filing a grievance or a human rights complaint and/or a civil suit.
If you are victimized at work, it’s a good idea to speak with an employment lawyer before filing a formal work complaint. Consulting with an expert in employment law, employee rights and the legal remedies available to you can help you choose the best path forward based on your specific situation.
It may also be easier to speak with someone outside of your work environment, especially if you work in a small business and the harasser is your employer.
Pursuing Legal Action Due to Sexual Harassment in the Workplace
Workplace sexual harassment can cross the line and become a criminal offence. Crimes such as:
- Physical assault
- Attempted physical assault
- Sexual assault, including non-consensual sexual touching
- Threats of assault
- Indecent Exposure, Indecent Act
can be reported to the police, and they will lay the appropriate criminal charge(s) if they have enough evidence. Speaking up when harassed or assaulted is difficult, and currently, only 6% of sexual assaults are reported to police. But making offenders answer for their actions can protect other potential victims.
Other legal remedies for dealing with sexual harassment in the workplace include:
Provincial Occupational Health and Safety Complaint
You can file a complaint with the labour ministry in your province if you feel that:
- Your work complaint wasn’t taken seriously.
- Your employer didn’t address the incident or issues that led to the harassment.
- You can’t report the issue at work.
In Ontario, the Ministry of Labour may send inspectors to your workplace to investigate potential contraventions of the Occupational Health and Safety Act (OHSA) based on your complaint. They will speak to management and maintain your anonymity if you request it but will not resolve or mediate individual allegations of workplace sexual harassment or award monetary compensation.
However, their report may include their findings regarding your complaint, other violations of the OHSA, written orders for the employer, supervisor or coworker to comply with and a deadline for compliance.
Human Rights Complaint
You can also file a human rights complaint against your employer and/or harasser with a provincial human rights commission, or the Canadian Human Rights Commission if you are a federal employee.
The Human Rights Tribunal of Ontario (HRTO) can award financial compensation for emotional injury and lost wages if you lost your job due to sexual harassment. There was recently $170,000 awarded in an HRTO case involving sexual assault for the injury to the complainant’s dignity, feelings and self-respect. This amount was based on several factors, including the seriousness of the harassment.
Sexual harassment in the workplace can also be dealt with by way of a lawsuit for damages against the perpetrator and/or the employer. It’s easier to prove sexual harassment in a civil case than in a criminal case as you are only required to show that sexual harassment took place “on the balance of probabilities,” which means you only need to establish that it is more likely than not to have happened (compared to “beyond a reasonable doubt” in a criminal case).
If that harassment caused you to resign, it could be classified as constructive dismissal, entitling you to severance pay and “human rights damages.” You can also seek damages for the physical and emotional distress caused by the harassment.
If you’ve experienced sexual harassment in the workplace, speak to an employment lawyer to help you decide on the best course of action based on your personal circumstances and the facts of your case.
Better, Faster Results
More often than not, we get our clients the compensation they deserve without having to file a formal complaint or lawsuit because of our reputation and experience. Our mission is to deliver better, faster results. If you’ve been sexually harassed at work, get in touch with us as soon as possible to preserve your rights as there are time limits to each legal option available to you.