conflictanalyticslab

By: Solinne Jung

Sexual harassment in the workplace: What is sexual harassment?

Employers have the general duty to provide a safe workplace and prevent workplace harassment. This duty is found in both The Human Rights Code, R.S.O. 1990, c. H.19, and The Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA).

Under the Occupational Health and Safety Act, workplace harassment is defined 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” or “workplace sexual harassment”. [1]

On September 8 2016, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 amended the OHSA in several ways. One notable way was to add the definition for workplace sexual harassment. Workplace sexual harassment is defined as “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.” It can also include “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.” [2]

Ontario’s Human Rights Code prohibits discrimination based on protected grounds like sexual orientation, sex, gender identity, gender expression, in protected social areas such as employment. [3] The Human Rights Code, describes sexual harassment in the workplace as harassment that arises because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. [4] To meet their general duties, employers should take reasonable steps to address harassment and a failure to do will lead the employer to be held liable under the Code. [5] 

The City of Toronto, Human Rights and Anti-Harassment/Discrimination (HRAP), provides examples of code-based workplace harassment, non-code workplace harassment, what is not included as workplace harassment, and workplace sexual harassment. [6] Some of the examples listed of harassment based on sex, sexual orientation, gender expression and/or gender identity include: [7]

  • Sexually suggestive or obscene comments or gestures
  • Use of slurs or jokes that are homophobic or transphobic
  • Humiliating or demeaning remarks
  • Unwelcome physical contact
  • Actions that reinforce heterosexual gender norms
  • Intrusive comments about physical characteristics
  • Negative stereotypical comments
  • Circulation of jokes or cartoons that are homophobic, sexist, derogatory

More examples of what can constitute sexual and gender-based harassment can be found here.

Sexual harassment in the workplace: What are my options as an employee?

File a complaint with your employer  

Your employer is required to have a workplace harassment policy and program in place. [8] The program should include specific content such as how employees are to report incidents and how the incidents will be investigated and dealt with. [9] If a policy is in place, then filling a complaint may result in a workplace investigation taking place either by your employer or a third-party external investigator. What a workplace investigation will do is allow an investigator to figure out what has allegedly happened, find out the facts related to the allegations, and determine whether the events alleged in a complaint occurred. [10] This will lead to various outcomes depending on the finding, such as additional training, an apology, mediation, and disciplinary responses such as suspension or termination for the employee.

File a claim with The Ministry of Labour

If your employer fails to comply with their statutorily mandated duties, you can file a claim with the Ministry of Labour. The Ministry of Labour inspector may order an employer to investigate by a third party who has knowledge, experience or qualifications specified by the inspector. [11]

File a Human Rights Complaint with the Human Rights Tribunal of Ontario

As an employee, you have one year from the date of the last incident of sexual harassment to file your human rights application. [12] Making an internal complaint with your employer will not prevent you from also filling a human rights claim or proceeding in other legal forums. [13] Situations where you may want to file a Human Rights Complaint is where an employer fails to address the incident, deals with it poorly, or is the alleged harasser themselves. [14]

For unionized workers, file a grievance

For unionized employees, if sexual harassment has occurred, an employee “may be able to file a grievance under an existing collective agreement”. [15]

Other legal recourse

Additionally, depending on the specific facts and circumstances, you may bring a civil suit or contact the police. 

The Human Rights Legal Support Centre provides a list of legal clinics in Ontario that are available to offer free and confidential legal advice. For more information please visit: https://www.hrlsc.on.ca/share/sites/default/files/SHIW-brochure-June-2020.pdf

The Sexual Harassment and Assault Resource Exchange (SHARE) can also be reached to help understand the options available for your situation. For SHARE’s contact information please visit: https://www.hrlsc.on.ca/share/en/faqs#8

Additional resources:

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.

Sources

[1] Occupational Health and Safety Act, RSO 1990, c O.1, s 1.

[2] Ibid.

[3] Ontario Human Rights Commission, The Ontario Human Rights Code, (Last accessed, May, 2022), online: <https://www.ohrc.on.ca/en/ontario-human-rights-code>.

[4] The Ontario Human Rights Code, RSO 1990, c. H.19, s 7 (2).

[5] Kim Bernhardt, Andrew Diamond, and Kevin Robinson. “Exploring Investigation Obligations under the Human Rights Code”. February 4-7, 2015. Labour & Employment Law Mastering the Complexities of Workplace Investigations. Ontario Bar Association Institute 2015.

[6] City of Toronto, Human Rights and Anti-Harassment/Discrimination (HRAP), (June, 2008), online: <https://www.toronto.ca/city-government/accountability-operations-customer-service/city-administration/corporate-policies/people-equity-policies/human-rights-and-anti-harassment-discrimination-hrap/>.

[7] Ibid.

[8] Occupational Health and Safety Act, RSO 1990, c O.1, ss32.0.5(2) and section 32.0.8

[9] Occupational Health and Safety Act, RSO 1990, c O.1, ss 32.0.6 (2)(a) and (c)

[10] Janice Rubin & Christine Thomlinson, Human Resources Guide to Workplace Investigations, Second Edition (Toronto: Thomson Reuters, 2018), at 2.

[11] Occupational Health and Safety Act, RSO 1990, c O.1, s 55.3(1)

[12] Ontario Human Rights Commission, 6. Ways to address sexual harassment, (Last accessed May, 2022), online: < https://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment/6-ways-address-sexual-harassment>.

[13] Women’s Legal Education & Action Fund, Sexual Harassment at Work: What can I do about it?, (Last accessed May, 2022), online: <https://www.leaf.ca/news/sexual-harassment-at-work-what-can-i-do-about-it/>.

[14] Ontario Women’s Justice Network, Sexual Harassment and the Law: Workplace Sexual Harassment, (Last accessed May, 2022), online: <https://owjn.org/2017/07/sexual-harassment-and-the-law-workplace-sexual-harassment/>.

[15] Ontario Human Rights Commission, 6. Ways to address sexual harassment, (Last accessed May, 2022), online: < https://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment/6-ways-address-sexual-harassment>.