Sexual harassment is prohibited under the Ontario Human Rights Code, the Canadian Human Rights Act and the Occupational Health and Safety Act (Ontario).
What is Harassment?
Under Part II, Interpretation and Application, of the Ontario Human Rights Code:
“harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Section 7.(2) of the Ontario Human Rights Code explicitly prohibits harassment due to your sex in the workplace:
7.(2) Harassment because of sex, sexual orientation, gender identity or gender expression in workplace – Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
In addition, Section 7.(3) of the Ontario Human Rights Code prohibits the following:
7.(3) Sexual solicitation by a person in position to confer benefit, etc. – Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
The Ontario Human Rights Code protects both men and women from being sexually harassed. The Ontario Human Rights Commission publishes policies and guidelines on the various human rights issues, which include, a Policy on Preventing sexual and gender-based harassment. This policy includes various examples of sexual harassment, some of which are reproduced below:
- sexual solicitation and advances;
- a poisoned environment (pornographic images in the workplace)
- invading personal space;
- demanding hugs;
- sexual jokes, including passing around written sexual jokes (for example, by e-mail);
- demanding dates or sexual favours;
- asking questions or talking about sexual activities;
- making sexual propositions;
- bragging about sexual prowess;
- leering or inappropriate staring; and
- making unnecessary physical contact, including unwanted touching, etc.
- making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal)
Does the employee have to show/prove that they objected to the “behaviour” at the time it occurred in order to establish sexual harassment?
No. In many situations, and in fact, in most employment situations, there is a power-imbalance between the employee and the harasser. As such, the employee is often afraid to speak out and object to the harasser’s behaviour at the time it occurs due to the fear of being fired, fear of being demoted, fear of being treated harshly in the workplace by the harasser, fear of being treated differently in the workplace, etc. The employee does not have to object at the time the conduct occurs in order to establish that he/she was sexually harassed.
WHAT if the harasser did not intend to sexually harass the employee – is it relevant to a finding of sexual harassment?
No. Irrespective of whether the harasser intended to sexually harass the employee, the harasser’s conduct and its impact on the employee are what are determinative of whether there was sexual harassment and thus a contravention of the Ontario Human Rights Code. In other words, it is no defence to a claim of sexual harassment for the harasser to assert I didn’t intend to sexually harass him/ her.
Sexual harassment is also prohibited in Ontario under the Occupational Health and Safety Act. This statute deals with ensuring that proper procedures and processes are put in place by employers to promote safety in work. In 2010, there were significant amendments enacted which increased the responsibilities of employers in the workplace to ensure that employees were working in a safe environment. The provincial government made further amendments in 2016.
Under the Occupational Health and Safety Act (Ontario), in the definitions section, “workplace harassment” is defined as:
“(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment
Workplace sexual harassment is defined as:
(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.
The laws governing the workplace are continually evolving. It is abundantly clear that the pendulum has swung significantly over the last several years vis a vis increasing the protection of employees in the workplace. The employee’s fundamental right to work in an environment that is safe and secure and free from sexual harassment, is of paramount concern and this is clearly being reflected in the development of workplace laws in Ontario.