Sexual harassment at work
It changes lives. Perhaps it has happened to you. Perhaps you fear being accused. The Supreme Court of Canada defined sexual harassment in Janzen v. Platy Enterprises Ltd. as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of harassment.”
Sexual harassment can occur between two people of the same or opposite sex.
The behaviour may be overt or discrete.
An intention to harass is not required.
It need not be directed toward a specific individual. It is sufficient that a person’s actions create a hostile or poisoned work environment.
If you are being sexually harassed, document as much as you possibly can (actions, words, witnesses), and consider taking the following steps:
1. Say “no,” clearly. Let the person know that this behavior is not appealing to you. Ask the person to stop. Do so in writing. This is an important first step toward putting the other person on notice that the conduct is unwelcome, and that it must stop.
2. Consider retaining an experienced employment lawyer to provide advice and act on your behalf. This can reduce the emotional turmoil of directly handling the case yourself, and assist in advancing your case.
3. Consider complaining. If you have put the other person on notice, but the behaviour persists, consider complaining to:
a) someone in a position of authority or in your employer’s human resource department. Many employers have specific policies and procedures in place for handling these complaints. If you are unionized, talk to your union representative or shop steward. Document your discussions. If you experience a negative response or feel you are being retaliated against, document that too.
b) the British Columbia Human Rights Tribunal. The BC Human Rights Clinic provides free representation to complainants who have cases before the Tribunal.
If there is a chance you might want to pursue it, seek advice immediately. This is because the British Columbia Human Rights Code requires a complaint to be filed within six months.
If you have been accused of sexual harassment:
Consider retaining an experienced employment lawyer to act on your behalf. This can reduce the stress associated with being accused, and assist you in determining how to respond. Take it seriously. Your job may be at risk. Cooperate with your employer. Document this. Recognize that what you say and do may later be scrutinized in court.
If you are an employer, an effective way to reduce the chance of this happening, and to better respond to any future complaints, is to develop and implement a harassment policy.
Much can be done to clearly communicate your expectations as an employer, and to educate your staff. This is best done before a problem arises, rather than after.
If you are an employer and you have received a sexual harassment complaint, consider the following steps:
Consider obtaining legal advice from experienced employment lawyers to assist you in determining how to respond.
Warn the alleged offender, and ask him or her to immediately stop the alleged conduct, or possibly suspend the person while you investigate. Document this.
Investigate the complaint, if possible using an impartial and objective investigator. Ensure that the process is fair. Document this. If you use a lawyer to investigate, consider using someone other than your usual counsel. Doing so can help avoid unnecessary legal risks.
If the conduct was sufficiently serious or repetitive, consider dismissing the offender from his or her employment, possibly for cause. In serious enough cases, a warning may not be required.
Susan Kootnekoff is a lawyer with Inspire Law in Kelowna. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances If you would like to reach Inspire Law, call 250-764-7710 or info@inspirelaw.ca.