- 1 FREQUENTLY ASKED QUESTIONS: INFORMATION FOR EMPLOYEES
- 1.1 Is harassment just a matter of opinion?
- 1.2 What if everyone else in the workplace is comfortable with the behaviour?
- 1.3 How does a person know what behaviour is unwelcome?
- 1.4 Case study: What's "reasonable"
- 1.5 What if colleagues want a sexual relationship?
- 1.6 What if my employer doesn't know harassment is taking place?
- 1.7 Can it be harassment if it only happened once?
- 1.8 What if the harassment takes place outside the workplace, or after regular work hours?
- 1.9 What if I didn't mean to harm or offend anyone?
- 1.10 Case study: the victim's perception
- 1.11 What if someone at work tries to retaliate against a complainant?
- 1.12 What if an employer doesn't deal properly with a problem of harassment?
- 1.13 Can my union help me?
- 1.14 What if I am sexually assaulted at work?
FREQUENTLY ASKED QUESTIONS: INFORMATION FOR EMPLOYEES
Is harassment just a matter of opinion?
No. Because of variances in life experiences, different people may have different perceptions of what harassment is, but we can still develop some common understandings. Any unwelcome behaviour that demeans, humiliates, or offends a person, or puts sexual conditions on a person's job, is harassment.
What if everyone else in the workplace is comfortable with the behaviour?
People react to behaviour in different ways. A person may think her or his conduct is welcome or innocuous, when in fact the recipient dislikes it, but is going along with it to avoid a confrontation. This can happen especially where there is a difference in age, racial or cultural background, seniority, level of authority, or personal power between those concerned. Sometimes people feel they have to join in to avoid being ostracized, victimized, or teased by their peers. However, if you are uncomfortable with this behaviour, you have the right to file a complaint and follow the steps outlined in this policy.
How does a person know what behaviour is unwelcome?
Sometimes a person can say directly that something that is offending or humiliating. Other times, we have to be aware of non-verbal messages and clues. If someone looks embarrassed or hurt, turns away, leaves the room, or avoids another, chances are they do not welcome certain behaviour. The courts have created the "reasonable person" rule; in other words, we assume that a reasonable person would know that certain types of behaviour are unwelcome. For example, a reasonable person would know that asking for sexual favours, and threatening someone's job if they do not comply, is unacceptable. In cases like this, the courts may presume the behaviour was unwelcome, even if the complainant has never said "no" or "stop," and seemed to go along with the situation.
Case study: What's "reasonable"
A woman alleged that she had been sexually harassed during her employment interview with a government department. During the interview, she was asked a number of questions about a previous sexual harassment complaint she had filed against another government department. She said the effect of the questions and discussion was harassment.
This case focussed on the issue of what standard to use when determining whether harassment has occurred. The traditional standard was whether a "reasonable person" would consider it harassment. The human rights tribunal hearing this case recognized that men and women might have different points of view about certain behaviour. For example, a male supervisor may believe it is acceptable to tell a female subordinate that she has "nice legs", while the female employee may be offended and humiliated by the comment. The usual 'reasonable person' standard would, therefore, be insufficient in a case where a woman claimed to have been sexually harassed. The review tribunal accordingly adopted a 'reasonable woman' standard as the appropriate one for cases of sexual harassment. (Stadnyk v. Canada Employment and Immigration Commission)
What if colleagues want a sexual relationship?
A relationship where both people are involved of their own free will is not harassment. However, if one person decides to end the relationship, the other does not have the right to insist, or to continue the sexual attention. And managers should be cautious when getting involved with workers, especially anyone who is under their supervision. The imbalance of power may mean that the worker has not actually consented, but feels coerced into the relationship.
What if my employer doesn't know harassment is taking place?
Only employers can really prevent harassment in the workplace. So the ultimate responsibility rests with them. The law says that even an employer who didn't actually know about the harassment is still responsible, if he or she should have known it was occurring. If an employer can show that he or she took all reasonable steps to prevent and deal with harassment, the legal and financial consequences may well be less severe.
Can it be harassment if it only happened once?
Yes. Frequently, harassment is a series of incidents. However, even something that only happens once can be harassment, if it was unwelcome to the person it was directed at.
What if the harassment takes place outside the workplace, or after regular work hours?
Any place or time that people are gathered for work-related reasons is still considered part of the "Workplace". This includes business travel, conferences, telephone calls, company social gatherings, and job interviews. Harassment is not permitted in any of these situations, and employers are responsible for dealing with it in these circumstances.
What if I didn't mean to harm or offend anyone?
Even the best intended comment or action may be harassing, if it is unwelcome or offensive to another person. Harassment is not about a person's intent. It is about how the behaviour affects the victim. You may only have intended to be funny, for example; but if someone else is humiliated by what you did or said, you may have harassed them without meaning to.
Case study: the victim's perception
An aboriginal employee alleged that he was harassed by racist comments, jokes, and names from his supervisors and colleagues. Some of the witnesses claimed that although such jokes or comments were made, they were made in a spirit of fun between friends, and that no offense was meant. The tribunal found that the intention of the person making the comments is irrelevant: "the issue is the perception of the individual who is victimized."
The fact that the victim did not object to the comments and even participated in the "joking" was raised as a defence. The tribunal held that this did not mean that the victim had consented to the racist comments, jokes and names or make this behaviour acceptable. According to the testimony of an expert witness, people may go along with activities "that they find objectionable and demeaning because they feel powerless to stop it and as an ego defense mechanism"...it is "a form of coping." (Swan v. Canadian Armed Forces)
What if someone at work tries to retaliate against a complainant?
Employers are legally required to protect their employees from retaliation. Retaliation against anyone involved in a complaint will not be tolerated, and will have serious consequences. Generally, the penalties for retaliation are the same as for the original harassment, and may be even more severe.
What if an employer doesn't deal properly with a problem of harassment?
An employee who feels her or his concerns have not been properly addressed has the right to contact the appropriate human rights commission or other organization. If an outside agency determines that harassment has taken place, the employer may face financial or other consequences: giving an apology, compensating the complainant for lost wages and injury to self-respect, or human rights training, for example. The exact remedy will depend on the complaint.
Can my union help me?
Unions can be involved in developing a workplace's anti-harassment policy, and in educating union members. Once there has been a harassment complaint, an employee who is involved may be able to file a grievance with the union, if the employer did not handle the complaint properly.
What if I am sexually assaulted at work?
If the harassment involves physical or sexual assault, you should contact the police. Physical and sexual assaults are criminal offences.