What is Sexual Harassment?

In today’s blog post, we want to discuss the common employee related claim of sexual harassment and the law surrounding sexual harassment in British Columbia.

What is sexual harassment?

Sexual harassment has several different definitions. We prefer to use the definitions set out in the leading case from the Supreme Court of Canada, Janzen v Platy Enterprises Ltd, [1989] 1 SCR 1252. In this case, the court referred to several academic articles before arriving at the following definition of sexual harassment:

I am in accord with the following dictum of the United States Court of Appeals for the Eleventh Circuit in Henson v. Dundee, quoted with approval in the Meritor Savings Bank case:

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

Accordingly, sexual harassment is unwelcome conduct of sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of sexual harassment. This definition is tied closely to harassment of a sexual nature in the work environment.

Sexual harassment can include sexual assault, but it also includes lesser forms of sexual misconduct such as sexualized comments, sexualized photographs, and sexualized communications or gestures.

What is the law regarding sexual harassment?

Complainants of sexual harassment can allege several different types of legal claims.

The most common legal claim is a breach of the British Columbia Human Rights Code, RSBC 1996, c. 210. Under section 13 of the Code, employers are prevented from discriminating against any person regarding a term or condition of employment cause of sex, sexual orientation, or gender identity or expression. In Janzen v Platy Enterprises Ltd, [1989] 1 SCR 1252, the court specifically decided that discrimination based upon sex includes sexual harassment.

The topic of sex discrimination is too large for one blog post. We have written about human rights claims generally. We have written a blog post about remedies available in human rights cases.

Other potential claims that could include elements of sexual harassment are:

• A civil lawsuit for sexual assault.
• A civil lawsuit for wrongful dismissal.
• A worker’s compensation claim for physical or mental injuries.

What should you know about sexual harassment?

The most important thing to know about sexual harassment is that the law does not require you to prove sexual harassment beyond a reasonable doubt. That is the criminal standard of proof. Each of the legal claims listed above only require proving that sexual harassment occurred on the balance of probabilities (i.e., it is more likely than not).

In proving a claim of sexual harassment, there is rarely hard proof of the events. The nature of these claims means that they occur in private, during times when people are not recording evidence. Building a case of sexual harassment requires explaining the circumstances in detail, providing contextual evidence (e.g., colleagues, friends, or family members seeing changes in the harassed person), or evidence of reporting to police, physicians, or counsellors.

Gathering and evaluating this evidence requires knowledge, skill, and experience. Seek legal advice on the nature of your case. The lawyers at Hutchison Oss-Cech Marlatt are skilled in evaluating cases and building up the evidence necessary for you to make your claim.

Sexual harassment does not require intent. In Stewart v Elk Valley Coal Corp., 2017 SCC 30, MacLachlin C.J.C. wrote that:

[24] To make a case of prima facie discrimination, “complainants are required to show that they have a characteristic protected from discrimination under the [Human Rights Code, R.S.B.C. 1996, c. 210]; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact”: Moore, at para. 33. Discrimination can take many forms, including “‘indirect’ discrimination”, where otherwise neutral policies may have an adverse effect on certain groups: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 32. Discriminatory intent on behalf of an employer is not required to demonstrate prima facie discrimination: Bombardier, at para. 40.

In addition, section 2 of the Code codifies this principle that an intention to discriminate is not required. It may be that the perpetrators did not intent to bring unwelcome conduct. That does not matter. If the conduct could be viewed by the victim as unwelcome conduct of a sexual nature, then it is possible for harassment.

It does not matter whether the conduct originates from other staff, managers, or customers. Employers have obligations to provide a safe work environment. This law is well established in British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, where the court wrote that:

[38] Based on my reading of the Code, the term “regarding employment” does not solely prohibit discrimination within hierarchical workplace relationships. If this were the case, then the words discrimination “regarding employment” would essentially mean discrimination “by employers or workplace superiors”. In my view, s. 13(1)(b) does not restrict who can perpetrate discrimination. Rather, it defines who can suffer employment discrimination. In this way, it prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment context. Determining whether conduct falls under this prohibition requires a contextual approach that looks to the particular facts of each claim to determine whether there is a sufficient nexus between the discrimination and the employment context. If there is such a nexus, then the perpetrator has committed discrimination “regarding employment” and the complainant can seek a remedy against that individual.

As the law permits claims against both individual employees for sexual harassment and employers for failing to provide safe work environments, it is common to list both the perpetrators of the sexual harassment individually and the business the victim works for in the claim.

While there is no limitation period to file a civil lawsuit for sexual assault, the other legal claims do have deadlines. A claim of discrimination based upon sex must be filed within one year under the British Columbia Human Rights Code, RSBC 1996, c. 210. A claim under the Workers Compensation Act, RSBC 2019, c. 1, also must be filed within one year. Lastly, any claims for wrongful dismissal must be made within two years. So, it is important to seek advice on this issue quickly to determine if you have a case.

The last and most important piece of information is to know that seeking consultation from a lawyer is confidential. There is no obligation for you to proceed with any claim and a lawyer will not disclose your concerns without your consent.

Seek Legal Advice

If you are an employee who has been sexually harassed in their employment, then we encourage you to speak to one of our lawyers regarding human rights, wrongful dismissal and other potential claims.

Contact us and we can help you evaluate your options. We know employment law!