Sexual Harassment in the Workplace - A Canadian Perspective

Sexual harassment: A thing of the past. No longer a problem. Why worry about it? Took the course, heard the message, bought the T-shirt. In the States, multi-million dollar sexual harassment lawsuits hardly get notice anymore. A couple years ago, in five short paragraphs, in the less-than-prominent "Careers" section of the Vancouver Sun, here was a headline: "Dial Corp. Settles Sex Harassment Suit."

The article was so obscure and tiny, you'd think the soap-making corporation had merely received a slap on the wrist. In fact, the article noted that Dial paid $10 million dollars over allegations of sexual harassment.

Here in Canada, as most of us know, huge sexual harassment payouts don't happen. But on a per capita basis, Canada must have as many sexual harassment issues as the States, which means the issue of sexual harassment harms employee morale and retention, and an organization's bottom line. In Canada, as in the United States, sexual harassment is bad for business.

Is it difficult to imagine sexual harassment cases still taking place in Canadian workplaces in 2009? I continue to marvel at the fact that all kinds of sexual harassment cases continue to roll out on a daily basis. And I’m forced to admit that, since most people don't report sexual and other forms of harassment, it's much more prevalent than we imagine.

But is sexual harassment just about sex? In 1989, then-Chief Justice Brian Dixon of the Supreme Court of Canada, in a unanimous decision, said “sexual harassment in the workplace may be broadly defined asunwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is…an abuse of power… [that] attacks the dignity and self-respect of the victim both as an employee and as a human being." (emphasis added)

(Here is a training video for managers and supervisors to use in the workplace called: How do you define harassment, bullying and other inappropriate types of behaviour.)

Today, the italicized part of that decision serves to define sexual harassment in Canada. To prove sexual harassment, a person needs to show he or she endured unwelcome sexual attention and that it had detrimental or negative consequences. While the consequences can be the classic, “You show me some sexual attention and I'll let you keep your job,” they don't have to go that far.

Managers and supervisors can learn more about sexual harassment, and how to prevent it in the workplace, by downloading:

.mp3 audio file “Chapter Three – Harassment Headaches” of Stephen Hammond’s book Managing Human Rights at work: 101 practical tips to prevent human rights disasters

Paperback of Managing Human Rights at work: 101 practical tips to prevent human rights disasters

.pdf of Managing Human Rights at work: 101 practical tips to prevent human rights disasters

A person who endures provocative pictures on the wall, or sexual jokes told in the lunchroom is often a person being subjected to sexual harassment. This is often referred to as a tainted, poisoned or hostile work environment. Hence, sexual harassment isn’t just about sex

Since the courts have ruled that sexual harassment is a form of sex discrimination, treating women negatively while treating men positively can constitute sexual harassment. In other words, if snide or rude comments are made to women but not to men, and they negatively impact the women's workplace comfort level, this is sexual harassment. The reverse is also true if men are the predominant targets.

My advice is to think of sexual harassment as more than the textbook case of a lecherous male boss. Non-sexual negative comments towards one particular gender, or a man harassing a man, or a woman harassing a woman all qualify. That said, it should come as no surprise that most sexual harassment still involves a man sexually harassing a woman. And you’d be surprised where sexual harassment can occur….such as even outside of work.

If an employee does something outside of work that has a negative impact back in the workplace, the employer may well find himself or herself dealing with a sexual harassment problem. Otherwise, imagine the loopholes, especially given today’s technology. Ed would just have to wait until after work to send lewd e-mails, faxes, and voice mail messages to his co-worker Tricia’s home. Or leave sexually explicit messages under her car’s windshield wipers.

Back at work, of course, Ed acts like a perfect gentleman. But if Tricia is disturbed by his actions, and we apply the definition of sexual harassment, what have we got? An employee receiving sexual attention she doesn't want, with negative consequences: a tainted work environment. Tricia is on edge all the workday wondering what Ed will pull next.

(Here is a link to a training video you can purchase and download called: Reducing discrimination of women at work.)

I investigated just such a case for a client. One night after their shift in the company parking lot, an employee asked a female colleague if she'd like a ride home. Having no reason to suspect anything except courtesy from a fellow worker, she accepted the ride. As soon as she noticed he was going in the wrong direction, she asked to be taken home or at least dropped off. He told her he just needed to pick up something from his apartment, then he'd take her home. As soon as he parked the car in his underground garage, she leapt out and escaped. She made her way back to the workplace, completely distraught.

Since she never made it to his apartment, we'll never know what his final motives were. The company hired me to investigate; in the meantime, the male employee was placed on an unpaid leave of absence. His union, protecting his interests, argued that since all of this had happened outside the workplace, it wasn’t a workplace harassment case.

The union stressed that the woman should have referred it to the police. But I knew the law said otherwise. I suggested termination of employment for the young man, because even if he’d been placed on a different shift from the woman who filed the complaint, I knew she’d never feel comfortable with the notion that she might cross paths with him again on work premises.

The company severed his employment, but stipulated that if he underwent counseling and was able to show he was no longer a threat to women in the firm, he could have his job back. He declined to pursue this option, his union's grievance was dropped, and his termination of employment was upheld.

Most sexual harassment cases off workplace property are not as severe, and do not end up with a person being fired. In my experience, most involve booze, parties or an infatuation. As comedian Phyllis Diller has said, "What I don't like about office Christmas parties is looking for a job the next day." Perhaps we should encourage employees to take that to heart. When companies hire me to train employees about sexual harassment issues, they often ask me to dwell a little on booze and company outings, thanks to unfortunate incidents in their past.

Not that employees shouldn’t socialize after hours. When problems do occur, most off-premises conflicts do not involve sexual harassment. Personality conflicts or other problems that don't fit the definition of sexual harassment do not have to be settled with a harassment policy or procedure. You might have a problem on your hands, but it won't be sexual harassment

Infatuations are particularly tricky to identify and deal with. As often as not, the person needs counseling of some kind. The role of a supervisor is simply to let the spurned employee know he needs to keep his feelings in check, while ensuring that the object of his desires feels completely comfortable bringing any problem to your attention. You can minimize the chances of off-premises issues becoming a bigger problem by letting employees know even their actions off the worksite can become a workplace concern.

Here are some training resources that Managers and Supervisors can use in the workplace relating to Sexual harassment:

Video: Dealing effectively with sexual harassment in an industrial or male-dominated environment

Video: Sexual harassment and the court’s ever-expanding interpretations

Video: Reducing discrimination of women at work

.mp3 audio file “Chapter Three – Harassment Headaches” of Stephen Hammond’s book Managing Human Rights at work: 101 practical tips to prevent human rights disasters

Paperback of Managing Human Rights at work: 101 practical tips to prevent human rights disasters

.pdf of Managing Human Rights at work: 101 practical tips to prevent human rights disasters

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