Carolyn Johnston discusses identifying and responding to sexual harassment including what sexual and gender-based harassment is, how sexual harassment can be difficult to identify and respond to, the common mistakes that businesses make with respect to preventing sexual harassment in the workplace, the common mistakes that businesses make with respect to investigating and responding to sexual harassment in the workplace, the consequences for ignoring sexual harassment in the workplace and what to do to prevent and address sexual harassment in the workplace as part of the Torkin Manes LegalPoint Video Series.

Click here to view video.

If you own or operate a business in Ontario, you are likely well aware of the fact that you have a legal duty to ensure that your workplace is free from harassment, and in particular, SEXUAL HARASSMENT.

Your employees have a right to freedom from harassment because of their sex, sexual orientation and gender.

In addition, your employees have the right to be free from a sexual advance or reprisal by a superior who can grant or deny a benefit to them AND where that superior knows OR should know that their conduct is unwelcome.

While you may already be aware of these obligations, the DIFFICULTY for most employers is typically IDENTIFYING sexual harassment in the workplace and RESPONDING appropriately.

Failing to identify AND respond to sexual harassment can have serious and costly consequences for your business and everyone involved.

Q. What is Sexual and Gender-Based Harassment?

Sexual Harassment can be seen to exist on a continuum from overt sexual behaviour, such as unwanted physical contact and persistent propositions to more subtle conduct, such as gender-based insults and taunting, which may create a negative work environment.

In some cases, one incident alone could be serious enough for a finding of sexual harassment.

Q. Sexual Harassment can be difficult to Identify and Respond to

One reason, sexual harassment can be difficult to identify and respond to in the workplace is due the manner in which an employee may bring a sexual harassment complaint forward.

For instance, a worker may not always submit a straight forward written complaint to the appropriate representative of your business identifying their complaint as a sexual harassment complaint and ask for a resolution.

Instead, with sexual harassment in particular, the employee may be somewhat guarded often due to the sensitive and possibly psychologically complex nature of the complaint

For instance,

  • a worker may bring the underlying conduct to the attention of a superior and never describe it as sexual harassment
  • a worker may ask that their complaint be kept confidential
  • you may receive an anonymous complaint
  • or alternatively, no complaint is received  
  • in some cases, your organization may even be aware of the questionable conduct but was not aware that it was unwelcome.

These are very challenging circumstances and yet your business must be prepared to identify the underlying conduct as potential harassment and respond properly.

Q. What are the common mistakes that businesses make with respect to preventing sexual harassment in the workplace?

First and foremost, prevention and early intervention are key.

A common mistake of many businesses is failing to implement an EFFECTIVE policy and procedure to address sexual harassment in the workplace and failing to train everyone in the organization on this policy.

Everyone in the workplace should be aware of your organizations expectations and complaints procedure. This includes all levels of the organization, including upper management, and importantly, all who have the power to grant or deny a benefit.

The value to your business in educating your employees and helping them to identify their own behavior which could be characterized as sexual harassment cannot be overstated. This type of training can prevent the sexual joke or rumour from ever being shared around the office or shop floor. It may prevent an employee from making the mistake that comments or solicitations on facebook or text cannot have workplace consequences.

In addition, when an employee knows who to turn to within your organization for help, a timely response may help prevent the escalation of the unwelcome conduct to something more serious or prevent the escalation of the complaint to outside of the organization.

Also, educating your supervisors and managers with respect to the type of conduct which may be characterized as sexual harassment will help them set the proper tone and expectations in your workplace.

Q. What are the common mistakes that businesses make with respect to investigating and responding to sexual harassment in the workplace?

Your business must be prepared to respond to a complaint in a timely, respectful and effective manner.

Common mistakes that your business may make upon receiving a complaint include:

ONE - failing to respond to the complaint in a timely manner,

TWO - making promises to the complainant that you cannot keep,

THREE - failing to consider whether alternative working arrangements should be made for instance, are there health and safety concerns?

FOUR - failing to appoint an impartial and experienced investigator, for instance, if there is a complaint against the president, is HR truly impartial?

FIVE - possibly failing to investigate the complaint all together or

SIX - failing to conclude the investigation and report to those involved

Turning your mind to these important issues now will help prevent common and often costly mistakes which many businesses make when addressing sexual harassment in the workplace.

Q. What are the consequences for ignoring sexual harassment in the workplace?

The consequences for the employer who has failed to provide an work environment free from sexual harassment can be very costly for everyone involved. In some cases, it may result in a finding that your organization and the alleged harasser breached applicable human rights legislation with substantial damages being awarded.

Q. What should I do to prevent and address sexual harassment in my workplace?

First and foremost, you should take steps to ensure that your organization is familiar the type of comments and conduct which negatively impacts the work environment and which may give rise to a complaint of sexual harassment. This can be achieved by creating effective policies and a training program for your staff.

And Second, if your organization has already received a sexual harassment complaint, human rights application or claim, we recommend consulting with a lawyer or other trained professional as early as possible to help your organization respond appropriately. It may be the case that early intervention can prevent costly and unnecessary legal proceedings.