The #MeToo and #TimesUp movements emphasize that employers must recognize sexual harassment in the workplace. Sexual harassment is a form of sex discrimination that is prohibited by law. Employers must conduct adequate and impartial investigations where necessary, and will
be liable for failing to address a poisoned work environment. Sexual harassment in the workplace consists of:
- conduct of a sexual nature which is gender-based;
- conduct that is unwelcome; and
- conduct that detrimentally affects the work environment or leads to adverse job-related consequences.
Whether conduct can correctly be characterized as above is determined based on the test of the reasonable person in the circumstances. Whether conduct is sexual in nature is determined on a case-by-case basis. Whether conduct is unwelcome depends on the complainant’s reaction at the
time an incident occurred. The complainant must establish that she had in some way, signalled to the harasser that their conduct was unwelcome. To note, behaviour may be tolerated and yet unwelcome at the same time. If the conduct is found to be sexual in nature and unwelcome, the adjudicator will assess the persistence and gravity of the conduct to determine whether the conduct was detrimental to the work environment. The more serious the conduct and its consequences, the less repetition is necessary. Conversely, the less severe the conduct, the more persistence will have to be demonstrated.
Sexual harassment is often viewed as falling along a spectrum of seriousness, calling for different disciplinary responses. For example, although both are forms of sexual harassment, sexual coercion is distinct from and more serious than sexual annoyance. In cases involving
workplace sexual harassment, there are a number of other factors determining what would constitute an appropriate response from an employer. These include:
- the particular culture or atmosphere of the workplace;
- any power imbalance between the harasser and the victim;
- the history of the relationship between the harasser and the victim;
- the harasser’s length of service and work record;
- whether an investigation would be appropriate and necessary;
- the harasser’s participation or lack thereof in an investigation; and
- any genuine expression of remorse or admittance of misconduct.
Because of the complex unique circumstances involved with incidents of sexual harassment in the workplace, it is advisable to seek specific legal advice. Contact Neil Hain for a consultation.