Partner, Whitten & Lublin, Employment & Labour Lawyers, Toronto In the wake of the Harvey Weinstein story, a successful workplace sexual harassment claim in Canada would not be worth any more money than before, although the claims certainly appear more plentiful now.
The real substantive legal change, however, is that the very boundaries of sexual harassment may be expanding, along with the public's interest in these claims. What are those boundaries and when does workplace sexual harassment arise?
In the leading decision of the Supreme Court of Canada, workplace sexual harassment was defined as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment."
This is an extremely broad definition and deliberately so. Virtually any form of behaviour can amount to sexual harassment, provided that it is sexualized in nature and unwelcome. In that same case, the Supreme Court explained that workplace sexual harassment could take on a variety of different forms and that employees need not suffer an identifiable economic loss, such as termination, in order to be a victim.
A connection to the workplace
For sexual harassment to amount to workplace sexual harassment, there must be a connection to the workplace. However, this is now mostly a superficial qualification. Few workplaces still have traditional borders. If two co-workers agree to go for dinner after work and an incident occurs, the fact this incident was after hours and away from the workplace is ultimately of little legal relevance. Similarly, a co-worker who sends unwelcome and suggestive text messages to another on a weekend is not immune from a workplace harassment claim and neither is the employer. In either scenario, once an employer is made aware of a complaint, it is required to investigate and ensure that the workplace, broadly defined, is free from harassment. This is the main objective of workplace sexual harassment laws – employers are made responsible to govern the conduct of their employees, including conduct that technically arises outside of the office.
In one of my first human rights cases, I was consulted by a woman who had a sexual relationship with her boss. The problem was that, once the relationship ended, her boss began a very subtle campaign of retaliation. He criticized my client at meetings, gave her more difficult tasks and he made sure to tell others that the quality of my client's work was lacking. To an untrained eye, it could be hard to spot sexual harassment. Both their relationship and their breakup were completely consensual. But this was a classic case. Why? Treating a work colleague poorly because he or she won't have sex with you is just as bad as demanding that a colleague have sex with you.
A "course" of conduct
Once upon a time, there was a debate about whether workplace sexual harassment required a recurring pattern of behaviour or a series of incidents in order to make out a successful claim. But now, a majority of the human rights complaints I field concern only a single incident of unwanted behaviour. An unwelcome comment, a hug, an inappropriate remark or even gawking could, in certain circumstances, lead to a successful human rights claim. Although human rights tribunals assess the quantum of damages based on the seriousness of the misconduct, there are countless nominal human rights awards where tribunals take the opportunity to set an example of how not to behave in the workplace.
The federal government has proposed new legislation, which if passed, will impose heightened obligations on federally regulated employers (banks, airlines, radio and television) to investigate complaints of workplace sexual harassment. If these employers fail to do so, they could be fined or publicly named, which would represent the first time that any Canadian statute would specifically seek to expose corporations who do not take their human rights obligations seriously.
In the past several months, there has been a seismic shift in how the public views sexual harassment such that complainants are viewed far more credibly than ever before. In this context, it can be difficult for the public, and even some judges, not to become predisposed to side with alleged victims. In my experience, the court of public opinion is often far more powerful and damaging to a company and its executives than a court of law. The threat of negative media exposure is causing many companies to rewrite their workplace sexual harassment policies, making them zero-tolerant. In some cases, employers are considering banning office relationships altogether, especially between subordinates and managers. Although this can be difficult for employers to police, they may be far less vulnerable to liability if their policies forbid workplace relationships from the outset.
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