Sexual Harassment

Author: Louise Langevin, Professor and member of the Barreau du Québec, Faculty of Law, Université Laval
 
 

Highlights

  • Sexual harassment is not a form of flirting or seduction or a sign of poor social skills; it is an infringement of a person’s right to equality and human dignity.
  • Sexual harassment can occur in the workplace or during office hours. It can also take place outside the workplace or outside office hours.
  • Sexual harassment can occur between a boss and a lower-level employee or between colleagues at the same level.
  • Sexual harassment can be considered a work-related accident in certain circumstances and the harassed employee may receive compensation from the Commission de la santé et de la sécurité au travail (CSST).
  • Employers may be held liable for the harassing behaviour of their employees. They are required to provide their staff with a work environment that is healthy and free of all forms of harassment.

Sexual harassment in the workplace or in other settings such as schools or medical facilities is not new. In Québec and Canada, it was gradually recognized in case law and the legislation and subjected to legal sanction during the 1980s and 1990s. It is a reprehensible form of behaviour that infringes on the victim’s right to equality and dignity.1,2 The concept of harassment, along with people’s attitudes towards it, have changed considerably since the late 1970s.3,4.

 
 
 
 

1) What is sexual harassment?

First of all, it should be specified that sexual harassment constitutes an infringement of a person’s right to equality. It is prohibited by section 15 of the Canadian Charter of Rights and Freedoms and by sections 10, 10.1 and 46 of the Québec Charter of Human Rights and Freedoms. Sexual harassment, like harassment based on race or any other personal characteristic, is a form of discriminatory harassment. From a legal standpoint, people who feel they have been sexually harassed must prove three basic things; namely, that they been subjected to:1,5

  1. unwanted sexual behaviour
  2. that manifests itself repeatedly, and
  3. that has adverse effects on its victims.

Sexual behaviour
Sexually harassing behaviour can come in a variety of forms: words, actions or posters with sexual implications.6

... unwanted sexual behaviour
To qualify as unwanted sexual behaviour, the alleged conduct must be viewed by the person targeted as unwelcome, which raises the question of perception and proof. What must the victim do or say to let the harasser know that he or she does not approve of the harasser’s behaviour? How does the court determine whether the sexual behaviour was unwanted?
Since victims are in a position of inferiority, their silence or passive tolerance cannot be equated with consent. Victims may prefer to remain silent in order to avoid being the object of reprisals or losing their job, or in the hope that their harassers will change their behaviour on their own. They may also be afraid. A victim’s refusal does not have to be explicit. Moreover, if a victim adopts the same behaviour as the harasser by, for example, responding with sexual remarks, this does not mean that he or she accepts the harassing behaviour. The victim may simply be resorting to a survival strategy. Every case is different.

Due to the very nature of sexual harassment, taking steps to determine whether or not the defendant knew that the sexual behaviour was unwanted is not an appropriate way to determine whether or not the victim welcomed the harassing behaviour. In other words, the defendant’s perspective is irrelevant. The court has access to a variety of models, ranging generally from the objective to the subjective, for assessing whether sexual behaviour is wanted or not. With objective models, the assessment is based on how a “reasonable person” would react if they found themselves in the same situation as the harassed victim, while with subjective models, the assessment is based on the plaintiff’s opinion.5

... that manifests itself repeatedly
In addition to proving that the sexual behaviour was unwanted, people who file a complaint for sexual harassment must demonstrate that the behaviour was repetitive. The court will then render a decision on the basis of the evidence provided. Depending on how serious the harassment was, a single alleged act may constitute sufficient proof. This would be the case, for example, if an employee were fired because he or she had refused the sexual advances of his or her boss.7

... that has adverse effects on its victims
Unwanted sexual behaviour in the workplace or in any other situation inevitably has adverse effects on the persons targeted. They must prove that they left their job or were denied a promotion because they had rejected the advances of a co-worker or that a hostile work environment had created difficult working conditions and affected their physical and mental health. In short, they must demonstrate that their right to equality and dignity has been infringed upon.

 
 
 
 

2) Types of harassment

Sexually harassing behaviours in the workplace can be divided into two main types depending on the nature of the consequences for the victims.1

  • The first type, called “quid pro quo” harassment, has direct economic consequences for victims.  It occurs, for instance, when a person rejects a co-worker’s advances and is then denied a promotion or a salary increase or even loses his or her job.
  • The second type, called “hostile climate” harassment, consists of sexual behaviour that helps to create an unbearable, unhealthy and hostile work environment for the victims. It involves sexual jokes, sexual comments and so forth. The goal of the harasser is not to obtain sexual favours from the victim, but to adversely affect his or her work performance and make the victim feel unwelcome in the workplace. It is more difficult to prove this second type of harassment. For example, a work atmosphere that appears hostile to one person may not appear hostile to others. It should be noted that hostile climate sexual harassment usually occurs in occupational settings traditionally reserved for men.

These two types of sexual harassment (quid pro quo and hostile climate) are not mutually exclusive and, legally speaking, victims do not have to describe their experiences on the basis of these types.

 
 
 
 

3) Who are the victims of sexual harassment?

Although women are the primary victims of workplace sexual harassment, the legislation protects all people subjected to this type of behaviour, be they women or men. It should also be noted that the victim may be of the same sex as the harasser. A person may be harassed on the basis of various personal characteristics. For instance, a woman of African origin may be a target of workplace harassment because of both her gender and her ethnic origin. In such cases, it is necessary to prove only one type of harassment. In all cases, the goal of the harasser, whether a superior or an equal-level employee, is to abuse his or her power over the victim.

Prevalence of sexual harassment in Canada and Québec: a few statistics

1993 Violence Against Women Survey (VAWS) by Statistics Canada

  • According to this survey, 6% of employed Canadian women aged 18 and over reported having been a victim of at least one form of workplace sexual harassment by a man in the year before the survey. Overall, 23% of Canadian women (i.e. 2.4 million) reported having encountered workplace sexual harassment during their working lives.8

1998 social and health survey by the Institut de la statistique du Québec

According to this survey, 8% of Québec women with paid employment aged 15 and over and 2% of their male counterparts reported having been a victim of unwanted sexual comments and conduct in their workplace in the 12 months before the survey.9
 
 
 
 

4) What avenues of redress are available to sexual harassment victims?

  • Since harassing behaviour is perceived differently by men and women and few people actually witness such behaviour when it occurs, proceedings against a harasser and his or her employer raise issues of proof and credibility.
  • The burden of proof lies with the person who files the complaint: he or she must prove in civil court, on the balance of probabilities, that the behaviour constitutes harassment. However, the complainant does not have to convince the decision maker beyond a reasonable doubt.
  • Several avenues of redress are available to victims:10
    • Workplace sexual harassment may be considered a work-related accident (s. 2, Act respecting occupational health and safety). For example, if a harassed female worker is no longer able to work because of workplace harassment, she may apply to the Commission de la santé et de la sécurité au travail (CSST) for compensation.
    • Victims may also file a complaint for psychological harassment against their employer with the Commission des normes du travail (CNT) (ss. 81.18 to 81.20, Act respecting labour standards). Sexual harassment is a form of psychological harassment.
    • Since sexual harassment constitutes an infringement of a person’s right to equality under the Québec Charter of Human Rights and Freedoms (ss. 4, 10,10.1 and 46), victims may file a complaint against a harassing employee with the Commission des droits et libertés de la personne et des droits de la jeunesse du Québec. The harassing employee and his or her employer may be held liable.
    • Victims may also file an action in civil liability in court against the harassing employee (art. 1457, Civil Code of Québec) and his or her employer (arts. 1457 and 1463, Civil Code of Québec).
    • A complaint for criminal harassment may also be lodged in the most serious cases (s. 264, Criminal Code). Victims may file a complaint with the police for physical assault or even sexual assault if they have been subjected to unwanted physical contact. Lastly, other laws apply in businesses under federal jurisdiction.
  • Forms of compensation vary depending on the court’s jurisdiction. For example, the court may order that the victim be awarded monetary compensation, be reintegrated into the workplace or receive a letter of apology from the harasser. It may also order that the harasser be subject to disciplinary measures or be transferred or that the employer adopt an internal policy against discriminatory harassment. The amounts granted to compensate for the adverse effects suffered by victims may cover lost wages, the cost of therapy, and psychological consequences such as damage to a person’s psychological integrity, loss of self-confidence, and so forth.
 
 
 
 

5) What can be done to prevent sexual harassment?

Even though it is essential to prohibit discriminatory harassment by law, this is not enough to eradicate this type of behaviour. Other measures must be adopted,11 including internal policies against discriminatory harassment, complaint mechanisms, employment of more women in sectors traditionally reserved for men, and staff training sessions on harassment. A number of these measures may be imposed through legal channels. Changes must also be made to corporate structures, policies and practices.

In conclusion, even though sexual harassment is prohibited by law and measures are taken to prevent it in the workplace, much remains to be done. Canadian and U.S. studies have confirmed that female workers still encounter sexual harassment (35% to 45 % of female workers).12 These studies also show that sexual harassment victims rarely file complaints.13,14 In fact, only 10% to 20% of victims report sexual harassment to a supervisor or other person in authority.15,16 In this regard, empirical studies need to be conducted on the experiences of female members of ethnic minorities who have been subjected to sexual harassment.

 
 
 
 

Resource

Help and Information Center on Sexual Harassment in the Workplace: www.gaihst.qc.ca

Last update: November 2012

 
 

References

  1. Janzen v. Platy Enterprises, [1989] 1 SCR 1252.
  2. Québec (Commission des droits de la personne et des droits de la jeunesse) v. Caisse Populaire Desjardins d'Amqui, [2004] RJQ 355 (TDPQ). (Available in French only)
  3. MacKinnon, C. (1986). Dix années de combat juridique aux États-Unis. In Association européenne contre les violences faites aux femmes au travail, ed., De l’abus de pouvoir sexuel, le harcèlement sexuel au travail (p. 49). Paris: La Découverte/ Montréal: Boréal, 1990. (Available in French only)
  4. Siegel R.B. (2004). A Short History of Sexual Harassment. In C. MacKinnon and R.B. Siegel, eds., Directions in Sexual Harassment Law (p. 1). New Haven: Yale University Press.
  5. Langevin, L. (2005a). Mythes et réalités: la personne raisonnable dans le Code civil du Québec. Cahiers de Droit, 46: 351-375. (Available in French only)
  6. International Labour Office. (1996). Special Survey on Equality in Employment and Occupation in respect of Convention No. 111, Report III (Part 4B). International Labour Conference, 83rd Session, Geneva.
  7. Hachey v. Habachi, [1999] RJQ 2522 (CA). (Available in French only)
  8. Johnson, H. (1994). Work-related sexual harassment. Perspectives, Statistics Canada, 11-15.
  9. Arcand, R., Labrèche, F, Stock, S., Messing, K. and Tissot, F. (2000). Travail et santé, in Enquête sociale et de santé 1998, Chapter 26. Institut de la statistique du Québec, 525-570. (Available in French only)
  10. Langevin, L. (2005b). Progrès ou recul: réflexions sur l’accessibilité à la justice pour les victimes de harcèlement sexuel au Québec. Revue Femmes et Droit, 17: 197-217. (Available in French only)
  11. Sheppard, C. (2001). Harcèlement en milieu de travail : vers une approche systémique. In J.-L. Baudouin and P. Deslauriers, eds., Droit à l’égalité et discrimination : aspects nouveaux (pp. 139-154). Cowansville: Éditions Yvon Blais. (Available in French only)
  12. Adams-Roy, J. and Barling, J. (1998). Predicting the decision to confront or report sexual harassment, Journal of Organizational Behavior, 19: 329-336.
  13. Brooks, L. and Perot, A.R. (1991). Reporting sexual harassment, exploring a predictive model. Psychology of Women Quarterly, 15: 31-47.
  14. Fitzgerald, L. and Swan, S. (1995). Why didn’t she just report him? The psychological and legal implications of women’s responses to sexual harassment. Journal of Social Issues, 51(1): 117-138.
  15. Crocker, D. and Kalemba, V. (1999). The incidence and impact of women’s experiences of sexual harassment in Canadian workplaces. Canadian Review of Sociology and Anthropology, 36: 541-558.
  16. Gruber, J.E. and Smith, M.D. (1995). Women’s response to sexual harassment: A multivariate analysis. Basic and Applied Social Psychology, 17: 543-562.