By: Harjaap Sahota

Everyone should be able to work in a safe and healthy work environment. However, harassment continues to plague many workplaces, negatively impacting the productivity and livelihood of workers. In order to curb this problem, it is important to first understand what constitutes “workplace harassment” so that it can be addressed, and prevented from proliferating any further when the situation arises.

The types of behaviours and actions which can constitute workplace harassment are vast. Each case is unique and must be assessed in its own context with consideration to all the surrounding circumstances. What may constitute workplace harassment in one case may not another.

What is harassment?

Under the Policy on Harassment Prevention and Resolution, harassment is defined as:

“improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s), or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, and pardoned conviction).”

Workplace Harassment in Ontario

In Ontario, the Occupational Health and Safety Act (OHSA) sets out the roles and responsibilities of employers to develop and implement harassment policies pertaining to workplace harassment. The OHSA defines workplace harassment as, “ 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.”

It is important to note that workplace harassment was expanded by Bill 132 to include workplace sexual harassment. Workplace sexual harassment is when an individual “engages in a course of conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of conduct or comments is known or ought to reasonably to be known to be unwelcome.” Workplace sexual harassment also includes, the making of a “sexual solicitation or advance when the person making the advance is in a position to confer, grant, or deny a benefit or advancement and knows or ought to have known that the advance or solicitation is unwelcome.” Put simply, if a reasonable person would know that the conduct is unwelcome, then that would suffice for the conduct to constitute workplace harassment.

Ontario Human Rights Code

The definition of workplace harassment encompasses harassment prohibited under Ontario’s Human Rights Code, and also what is frequently called “psychological harassment” or “personal harassment”. The Ontario Human Rights Commission facilitates compliance with the Human Rights Code.

Harassment normally entails a series of incidents, and any of these incidents viewed in isolation may not in itself constitute harassment. That is to say, harassment typically involves repeated and persistent problematic actions towards an individual to achieve a wide array of negative responses or results such as to undermine, frighten, provoke, or intimidate that person. Nonetheless, a single incident can constitute harassment so long as it is established to be severe, and have an enduring significant impact on the victim.

Workplace harassment does not only apply to incidents that occur in the workplace. It also comprises of behaviours or conduct taking place at any location or event related to work. Some examples include conferences, training sessions/activities, and social events.

Workplace violence or harassment can originate from anyone the worker comes into contact with in the workplace including clients, coworkers, employers, students, or supervisors to name a few. The harasser may even be someone with no formal connection to the workplace such as a stranger who brings violence or harassment into the workplace.

Criteria for Harassment

The following criteria need to be met for actions/ behaviours to constitute harassment. It must be demonstrated on the balance of probabilities (more likely than not) that:

· The harasser displayed improper and offensive conduct including objectionable acts, comments, or displays in relation to any prohibited ground of discrimination

· The behaviour was directed at the complainant

· The complainant was offended or harmed

· The harasser knew or reasonably ought to have known that such behaviour would cause offence or harm

· The behaviour occurred in the workplace or at any location or event related to work

· There was a series of incidents or one severe incident

Examples of Harassment

Although not an exhaustive list, the following behaviours or actions can constitute as workplace harassment:

· Workplace bullying name-calling or slurs

· Intimidating or offensive jokes or innuendos

· Displaying or circulating offensive pictures

· Offensive or intimidating emails, calls, or other communications · Unwanted sexual advances

· Making gestures that seek to intimidate

· Defaming the person by spreading malicious gossip or rumours

· Demeaning or belittling a person by making a person perform tasks inferior to his/er competencies or setting a person up for failure

· Making fun of a person beliefs, practices, or choices

What is NOT considered harassment?

Harassment is serious, so not every questionable action or behaviour will be deemed to be workplace harassment. Examples of what would not constitute as workplace harassment:

· Work-related stress

· Difficult conditions of employment

· A single or isolated incident such as an inappropriate remark that does not rise to the level of “severe”

· Friendly gestures such as a pat on the back

· Normal exercise of managements’ right to manage

Poisoned Work Environment

A poisoned work environment refers to a workplace that has become an offensive or hostile work environment to work in due to unacceptable behaviours or comments such as yelling out loud or breaking things in frustration. Since the actions or behaviours are not directed at any one individual this would not constitute workplace harassment.

Conclusion

Hopefully, this information helps you determine whether you are facing a situation that constitutes workplace harassment. If you are able to establish that you are being harassed, then it is important for you to take steps towards remedying the situation whether that be speaking to management/ human resources, filing a harassment complaint, or seeking legal advice from a professional. It is critical that we address these concerns when they arise so that future incidents are avoided.

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Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.