Today’s topic is one that is, unfortunately and fortunately, on a lot of our minds these days.
While sexual harassment is not an enjoyable subject to focus on, it’s imperative that we give sexual harassment the focus it deserves so that future discussions on the topic will hopefully only be for preventative measures.
And while we’re on the subject of how fortuitous it is that sexual harassment in the workplace is front and center, let’s applaud the 2018 Pulitzer Prize for Public Service Journalism for being jointly awarded to The New York Times and The New Yorker for the outlets’ coverage on sexual assault in Hollywood. What a brilliant choice!
Here is that game changing article credited for being the catalyst for the #MeToo movement.
Ever since the #MeToo movement, Sexual Harassment in the Workplace is spoken about and commented on far more than ever before. This is a very good thing.
However, there is always more to do, and the moment that an organization believes it has done everything it can in terms of prevention and response, there is a risk that complacency will set in, resulting in a resurgence of problems.
So, let’s make sure this doesn’t turn into another “trending” hashtag, and we continue to be laser-focused on the issue.
After all, the cost of just one sexual harassment lawsuit could sink a small or medium-sized business, not to mention the personal implications it can have on the parties involved, and the negative impact on company culture and employee morale.
Employees are in the workplace together for a large period of time (mathematically sometimes more than they are with their family and friends!), so forming relationships is natural. And while most bonds are harmless, others wander into elements of workplace relationships that are not so healthy.
Business owners are legally responsible for making sure the organization is a comfortable, respectful, and safe place for everyone to work.
That’s why training every supervisor and employee about sexual harassment (and all other forms of harassment and discrimination) is vital.
Furthermore, that’s why the importance of taking a proactive approach to preventing sexual harassment in your workplace is always of critical importance.
Let’s revisit the essentials here in Canada.
One of the leading cases on sexual harassment, Janzen v. Platy Enterprises Ltd., identifies three key elements in its description of sexual harassment in the workplace:
- Conduct of a sexual nature that is gender based
- Conduct that is unwelcome
- Conduct that detrimentally affects the work environment or leads to adverse job- related consequences
Note, while women typically experience sexual harassment more often than men, sexual harassment can, and does, happen to men. It can also occur between two people of the same sex.
What is conduct of a sexual nature that is gender based?
As the name suggest, “gender based” refers to behaviour that relates specifically to gender.
In other words, the offensive behaviour references gender (e.g. overt sexual solicitation) or the behaviour occurs because of the gender (e.g. an offensive joke that does not refer to sex, but rather is said to embarrass the person because of their gender).
“Conduct of a sexual nature” includes a wide range of behaviours or actions. Some examples defined by the courts include:
Physical conduct such as:
- Pinching, grabbing, patting, rubbing, sexual assault (which is also a criminal matter), sexual intercourse, unnecessary physical contact, kissing—basically any kind of touching that has a sexual connotation.
Verbal conduct such as:
- Making derogatory comments about a person’s appearance or body, including: insulting comments and gestures, insulting nicknames, verbal abuse or threats, unwelcome remarks, jokes, innuendoes, or taunting.
- Making comments about a person’s or colleague’s personal life, including: inviting a colleague out when it’s clear the person doesn’t want to socialize with the other person, making sexual propositions, spreading false rumours about a person’s sex life or morals, referring to sexual affairs with previous employees, or questions regarding sex life.
Environmental examples such as:
- The display of pornographic or other offensive pictures; making practical jokes that cause awkwardness or embarrassment; crude, sexual, or abusive remarks; making suggestive comments, innuendoes, and sexual jokes.
Get the picture?
So now let’s talk about the concerns with generally accepted banter or normal social interactions at work.
It’s important to remember that just because other employees are not offended by crude comments, sexual innuendo, posters on the wall, or other “generally accepted banter” in the workplace, it doesn’t make a person’s complaint or concern invalid.
It may however, require that a person express an objection to the behaviour so as to let others know that they’re offended—if the complainant has previously participated in the banter, it may be more difficult to show that the conduct was unwelcome.
If all parties were involved in the banter, there is no need for a specific objection since consensual conversations about sex are not prohibited in the workplace.
What is meant by the phrase “unwelcome” in nature?
Courts use an objective test for determining if conduct is unwelcome.
The test asks what a reasonable person would consider to be unwelcome, and assumes that one can only be expected to refrain from engaging in conduct that he or she could reasonably have known was unwelcome.
In other words, an express objection on the part of the victim to certain more overt behaviours (such as rubbing, pinching, grabbing, patting), while prudent, is not likely required to show its unwelcome nature because a reasonable person ought to know these actions are unacceptable and unwelcome.
However, if someone flirts with the idea of dating a colleague and asks them out on a date, a reasonable person would not likely perceive this to be harassment, so an express objection may be required if it is unwelcome. Furthermore, if the pursuit persists and turns into a pattern of behaviour that demoralizes, humiliates, and/or impedes an otherwise healthy working relationship, a reasonable person ought to know their actions are unwelcome.
Basically, if behaviour is not self-evidently offensive, an express objection may be required, as a reasonable person may not be aware their behaviour is unwelcome.
What to do if you’re being harassed?
Harassment is a serious concern and should never be ignored.
Here are some practical suggestions if you experience or witness harassment:
- Speak out and make it clear that the person (or yourself) does not approve of what is happening, and tell the person (people) to stop
- Tell your supervisor or someone in Human Resources about your concern and ask them for their assistance
- Follow the employers’ procedures set out in their harassment policy
- Prepare and keep a detailed record of the incident(s)
- Talk to a union rep or shop steward
But most importantly, notice how “doing nothing” is not considered as an option…
Phil Eastwood is a former London Bobby who brings a thirty-five year career in policing to his role as Senior Partner of Fiore Group Training. Phil is lead author of respectful workplace training, workplace violence employee training, and leadership training courses.