What Is Sexual Harassment in Ontario Law, and What Can Be Done about It?
This article is part of a three-part series on sexual harassment in Ontario law. The series is intended to be used as a resource about the rights and responsibilities of employees and employers in Ontario. For legal advice tailored to your specific circumstances, contact us.
Part 1: #metoo? Defining sexual harassment at work
In Ontario, the right to be free from sexual harassment is a human right. As a human rights lawyer, I’m often asked how the law defines sexual harassment. Where is the line?
The line is not difficult to trace in a legal sense. Sexual harassment is any sexual or gendered comment or conduct that is “known or ought reasonably to be known to be unwelcome.”
Typically, behaviour isn’t harassing unless it’s repetitive.
Harassment is usually a series of comments or a “course of conduct,” but a single, severe incident can qualify too. This definition encompasses both sexual-solicitation/innuendo type harassment, such as unwelcome flirting, as well as other gendered forms of harassment, such as bullying someone for being (or being labeled as) gender non-conforming.
So here’s the line: If the comments or behaviour have a sexual or gendered connotation, and they are unwelcome, then they amount to sexual harassment. That’s true even if the harasser’s subjective intention is non-sexual or even supposedly “innocent” or well-meaning (Example: sexual harassment as a part of an initiation on a sports team). If the harasser “ought reasonably know” that the behaviour is unwelcome, then it’s harassment.
But that’s a broad definition!
Uh, yeah. Surprised? Sexual harassment is common. Many people (especially women and those with gender non-conforming identities) tolerate it outwardly to a certain extent (but not necessary by choice). For now.
Though legally defining sexual harassment is easy, it can be hard to identify when it actually happens. It can be hard to determine whether a manager’s wink or a colleague’s comment on your appearance actually meets the definition of harassment.
So how can you identify sexual harassment?
Identifying sexual harassment is something we can help with. Another source of helpful information is the Ontario Human Rights Commission’s Policy on Preventing Sexual and Gender-Based Harassment, which includes a list of examples that can be used as points of reference:
- demanding hugs
- invading personal space
- making unnecessary physical contact, including unwanted touching, etc.
- using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
- leering or inappropriate staring
- making gender-related comments about someone’s physical characteristics or mannerisms
- making comments or treating someone badly because they don’t conform with sex-role stereotypes
- showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
- sexual jokes, including passing around written sexual jokes (for example, by e-mail)
- rough and vulgar humour or language related to gender
- using sexual or gender-related comment or conduct to bully someone
- spreading sexual rumours (including online)
- making suggestive or offensive comments or hints about members of a specific gender
- making sexual propositions
- verbally abusing, threatening or taunting someone based on gender
- bragging about sexual prowess
- demanding dates or sexual favours
- asking questions or talking about sexual activities
- making an employee dress in a sexualized or gender-specific way
- acting in a paternalistic way that someone thinks undermines their status or position of responsibility
- making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).
The law is anti-sex?!?
False. It’s anti-sexual harassment. Flirtation is harassment only if the perpetrator should know, from an objective perspective, that it’s unwelcome.
Even if an initial flirtatious overture is unwelcome, can the would-be flirt reasonably know it’s unwelcome when it’s a first try? Possibly. Possibly not.
If the overture is not crass or crude and is made in a genuine effort to gauge reciprocity, then chances are that it’s not harassing, at least not initially. But if the overtures are repeated without any reciprocation, at a certain point, the perpetrator knows or should know they’re unwelcome. Line. Crossed.
But people start romantic relationships in the workplace all the time!
Forming romantic relationships in the workplace is not prohibited by the law. The law accepts that romantic interests may form and be expressed as flirtatious overtures. It also accepts that those overtures may be rebuffed.
Being rejected doesn’t make someone a harasser. The law does not prohibit an honest and tactful attempt to gauge or spark romantic or sexual interest, provided it’s done non-oppressively. Non-oppressive, tactful flirting fulfills an important social function, and the law recognizes that.
What the law demands is that we prevent this mundane social behaviour from devolving into something harmful. It demands that we (mostly men) abandon antiquated (and crude, crass, and/or oppressive) forms of sexual and romantic courtship as well as the sense of male entitlement that undergird and animate them. It demands that when we are called out for sexual harassment, we accept and learn from it.
Most sexual harassment likely has nothing to do with romantic interest (or even sexual interest) in any event. Most sexual harassment is ill-intentioned from the outset, and that is prohibited. Innocuous, genuine flirting is not.
Ontario human rights law gives us the freedom to be free from sexual harassment in the workplace. That freedom includes the right to be free to reject or accept sexual and romantic overtures without risking retribution or reprisal. That’s not anti-sex. It’s sex positive.
Wondering whether someone has crossed the line? Call us. We can help. Everything you tell us is confidential.