Sep 25, 2011

Sexual Harassment 101

To prove sexual harassment in Ontario, there is a four pronged test. We are often asked by clients – usually women – whether they have been sexually harassed.

In Ontario, to prove sexual harassment, a person must show that the harassment was

(i)  a course of vexatious conduct or comment,
(ii) by an employer or employer’s agent,
(iii) unwelcome or ought to be known to be unwelcome; and
(iv) related to sex or gender.

What does vexatious mean? Vexatious has been interpreted to mean the comment or conduct is annoying, distressing or agitating to the person complaining, or the person finds the comments and conduct worrisome, discomfiting and demeaning.

In addition, every employee 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.

In a sexual harassment case, the decision maker makes a multi-faceted assessment of the situation that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct.

The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim. Objecting to harassing conduct is not a precondition to a finding of harassment.

Leering and using suggestive sexual language that a person should have known was unwelcome can constitute sexual harassment.

In a recent case, employee was awarded $2,500 by the Human Rights Tribunal of Ontario (the “Tribunal”) for being sexually harassed.

In this case, a male supervisor, among other things, drove the applicant, a female subordinate, to the company Christmas party. The applicant stated that she was not dressed provocatively but that when she got into his car, he stared at her for what seemed like a long time and said that she looked nice. This is one of several times the Tribunal concluded the male supervisor leered at her (and other employees).

While at work, the applicant wore a panic button around her neck. It was slightly bigger than a two dollar coin. A few days after the Christmas party, the male supervisor approached the applicant and started to massage her neck. He said “let me fix your panic button” and proceeded to remove her panic button over her head, all the while staring at her breasts.The Tribunal found that this “panic button incident” constituted a sexual solicitation of or, at minimum, an improper advance towards the applicant within the meaning of the Ontario Human Rights Code.

If you think you have been sexually harassed and want to know your rights, call us at 647-633-9894 or email us at [email protected].

For more information about harassment or violence at work, see here.


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