Sexual Harassment – Know The Laws of Your Province

Understanding the laws surrounding sexual harassment in the workplace is crucial for fostering a safe and respectful environment. Canadian legislation, including the Canadian Human Rights Act and various provincial laws, outlines clear definitions of sexual harassment, employer responsibilities, and the rights of employees. These laws aim to prevent harassment, ensure prompt investigations, and provide remedies for those affected. By being informed about these regulations, employers can take proactive steps to create a culture of respect, protect their workforce, and mitigate potential legal liabilities.

OBLIGATIONS OF WORK SITE PARTIES

Employers, supervisors, and workers have specific duties they must follow to address harassment and violence at the workplace.

  • Employers must ensure workers are not subject to or participate in harassment or violence at the work site.
  • Supervisors must ensure workers under their supervision are not subject to harassment or violence at the work site.
  • Workers must refrain from causing or participating in harassment or violence.

Harassment Prevention Policy

An employer must instruct workers on the hazard of workplace harassment and violence, how to recognize the signs of danger, what to do about it, and how to report it.

Harassment Prevention Plan

An employer must develop and implement a harassment prevention plan that includes a harassment prevention policy and harassment prevention procedures.

Review of Plans

An employer must review the violence prevention plan and the harassment prevention plan, revising the plans if necessary.

Training of workers

An employer must ensure that workers are trained in the recognition of violence and harassment, and the policies, procedures, and workplace arrangements that effectively eliminate or control violence and harassment.

SEXUAL HARASSMENT – EMPLOYER’S OBLIGATIONS      

  • The employer is committed to eliminating the hazard of harassment, or if the hazard cannot be eliminated, it will be controlled.
  • The employer will investigate all incidents of harassment and take corrective action to address the incidents.
  • The employer will not disclose the circumstances related to an incident of harassment or the names of the parties involved (including the complainant, the person alleged to have committed the harassment, and any witnesses) except where necessary:
  • To investigate the incident or to take corrective action,
  • To inform the parties involved in the incident of the results of the investigation and corrective action taken, or
  • As required by law.

An employer must instruct workers on the hazard of workplace harassment and violence, how to recognize the signs of danger, what to do about it, and how to report it.

An employer must ensure that workers are trained in

  1. the recognition of violence and harassment,
  2. the policies, procedures, and workplace arrangements that effectively eliminate or control violence and harassment,
  3. the appropriate response to violence and harassment, including procedures for obtaining assistance, and
  4. the procedures for reporting, investigating, and documenting incidents of violence and harassment.

Further details on A GUIDE TO THE LAW IN ALBERTA REGARDING SEXUAL HARASSMENT IN THE WORKPLACE can be found at Bowvalleyvictimservices.org

EMPLOYER RESPONSIBILITIES

British Columbia workplace harassment obligations are set out in the legally binding WorkSafeBC Occupational Health and Safety Policies developed under the Workers’ Compensation Act.

Employers have specific responsibilities and duties regarding the prevention and handling of sexual harassment in the workplace. These responsibilities are established under various regulations and policies to ensure a safe and respectful working environment for all employees.

Develop Clear Policies: Employers must create and disseminate a comprehensive policy on sexual harassment. This policy should define what constitutes sexual harassment, outline the procedures for reporting incidents, and explain how complaints will be handled. The policy should be accessible to all employees and regularly reviewed and updated.

Provide Training: Employers are required to provide training on preventing bullying and harassment, including sexual harassment. This training must be conducted before the start of employment and reviewed annually. The training should cover recognizing harassment, how to respond to it, and the process for filing complaints. Training must be provided to all employees, including apprentices and volunteers​​.

Prompt and Thorough Investigations: Employers must take all allegations of sexual harassment seriously and conduct prompt and thorough investigations. The process should be impartial and aim to establish the facts to take appropriate corrective action. This might include counseling, disciplinary action, or termination of employment for the harasser, depending on the severity of the incident​​.

Support for Victims: Ensuring that victims feel safe and supported throughout the complaint process is crucial. Employers should provide necessary accommodations and support to victims, which may involve adjustments to work assignments or other measures to ensure their comfort and safety at work​​.

Legal Compliance: Employers must comply with the British Columbia Human Rights Code, which identifies sexual harassment as a form of discrimination. This includes any unwelcome conduct of a sexual nature that can cause offense, humiliation, or psychological harm to an employee​.

Further details on the QUICK REFERENCE COMPLIANCE GUIDE – BRITISH COLUMBIA can be found at Respectfulartsworkplaces.ca.

Policy Statement

The Manitoba government is committed to fostering a work environment that is respectful and free of all forms of harassment, including sexual harassment and bullying.

Responsibilities of Employers

  • Follow the roles and responsibilities as outlined for all employees.
  • Promote and take responsibility for fostering a workplace culture of respect, including setting a positive example of respectful behaviour.
  • Ensure employees are aware of the policy and expected behaviours in the workplace, and have taken the applicable mandatory respectful workplace and harassment prevention training.
  • Intervene promptly once aware of sexual harassment, harassment/bullying, and/or workplace violence.
  • Immediately contact human resources for guidance and assistance for complaints of sexual harassment, harassment/bullying, and/or workplace violence.
  • Ensure complaints are handled fairly, confidentially, effectively, and in a timely manner, and that appropriate action is taken respecting any person under the supervisor’s direction.
  • Ensure complaints and all actions taken to resolve the issue are documented. All complaints of sexual harassment must be documented using the Complaint of Inappropriate Conduct Form and reported immediately to human resources.
  • Ensure there is no reprisal/retaliation against anyone who has come forward and made a complaint in good faith.
  • Ensure workplace restoration measures are put in place following the resolution of a situation involving inappropriate behaviour.

Who is Responsible for Harassment?

Employers (including senior managers), landlords, and service providers are responsible for providing a harassment-free environment.

What is Sexual Harassment?

Sexual harassment is defined in The Code as a series of objectionable and unwelcome sexual solicitations or advances or a sexual solicitation or advance made by a person in an authority, if that person should reasonably have known that their behaviour would be unwelcome or retaliating against someone for rejecting a sexual solicitation or advance.

Effects of Sexual Harassment in the Workplace?

Sexual harassment can create a poisoned or hostile environment, which can impact everyone in the workplace or environment even if they are not themselves the direct target of the harassment.

What Can You Do if You Are Harassed?

If management fails to take prompt and effective action regarding your concern, then you may wish to contact The Manitoba Human Rights Commission for information or to file a complaint.

What should the employer, landlord, or service provider do?

  • Investigate the allegation promptly by talking to the individuals involved, as well as witnesses who might have information about the incident(s).
  • If the allegation is substantiated, take steps to ensure the harassment stops, such as taking disciplinary action, developing an anti-harassment policy and procedure and/or educating some or all those in the workplace.

Further details on the Guidelines under The Human Rights Code on harassment and sexual harassment can be found at Manitobahumanrights.ca.

In New Brunswick, employers have specific responsibilities regarding the prevention and management of sexual harassment in the workplace, mandated by recent legislative changes.

Develop and Implement a Harassment Policy: Employers are required to have a comprehensive harassment policy in place. This policy should clearly define what constitutes harassment, including sexual harassment, and outline the procedures for reporting and addressing complaints. The policy must be accessible to all employees and regularly updated.

Provide Training: Employers must provide training on the harassment policy to all employees. This training should help employees recognize harassment, understand the procedures for reporting it, and know how the company will handle complaints. Safer Places NB offers free online courses and workshops to help employers meet these training requirements.

Risk Assessment and Code of Practice: Employers must conduct a risk assessment to identify potential risks of violence and harassment in the workplace. Based on this assessment, they must establish a Code of Practice to mitigate these risks. The Code should include procedures for reporting incidents, measures for prevention, and steps for investigating and addressing complaints.

Confidentiality and Privacy: Employers must ensure that the identity of individuals involved in harassment incidents and the details of the incidents are kept confidential, except when necessary for the investigation or as required by law. They should also limit the collection and use of personal information to the minimum necessary to address the issue.

Prompt and Thorough Investigation: Employers are responsible for conducting prompt and thorough investigations into any reported incidents of harassment. This includes taking appropriate corrective actions based on the findings of the investigation.

Support for Victims: Employers must provide support to employees who report harassment. This may include offering counseling services and ensuring that victims feel safe and supported throughout the process.

Compliance with Legal Obligations: Employers must comply with the specific requirements set out in the Occupational Health and Safety Act and other relevant legislation. This includes the potential for fines and other penalties for non-compliance.

For more detailed information and resources, you can visit WorkSafeNB and Safer Places NB.

Further details on the Developing Workplace Violence and Harassment Codes of Practice can be found at Worksafenb.ca.

What constitutes harassment:

  • Harassment based on prohibited grounds (as per Human Rights Act).
  • Sexual harassment (a form of harassment based on prohibited grounds).
  • Personal harassment (includes bullying).

Harassment Prevention is the Responsibility of the Employer

Employers have the legal obligation to ensure that workers are not exposed to harassment with respect to any matter or circumstance arising out of employment.

Employer responsibilities include:

  • Develop, implement, and maintain a harassment prevention plan.
  • Maintain confidentiality.
  • Set out procedures for workers to report instances of harassment, including the procedure to report instances to an external third party where the employer or the supervisor is the respondent.
  • Participate in training relating to harassment prevention.
  • Provide training to employees regarding harassment prevention and details of the employer’s harassment prevention plan.
  • Set out the procedures to be followed after a complaint of workplace harassment is received.
  • Set out the manner in which a complaint is investigated.
  • Set out the procedures regarding notification of results of investigations and any actions to be taken as a result of an investigation.
  • Protect workers from retaliation and provide support to workers when workplace harassment occurs.
  • Make the harassment prevention plan accessible to all workers in the workplace.
  • Review the harassment prevention plan as necessary but at least annually.
  • Investigate complaints of workplace harassment, or obtain the services of a third party investigator where necessary.
  • Pay for any expenses relating to an investigation by an impartial third party.

Access to Education and Training for Employees

Newfoundland and Labrador OHS Regulations require all employees to be trained on the topic of harassment prevention in the workplace.

  • Be able to locate the plan at any time.
  • Understand what information it includes and how it pertains to them as an
  • Know who is responsible for the plan’s maintenance and how it will be implemented (especially where there are multi-employer work sites).
  • Know what the role of the union will be (where applicable).
  • Know what kind of support to expect for any worker (including management) in the organization both during and after an investigation into an allegation.
  • Know how to make a harassment complaint (to whom, using what method), and what to expect once a complaint has been submitted.
  • Know how to report harassment and bullying should they witness it at the worksite, and what to expect once a report has been submitted.
  • Be provided with information on their own legal obligations in the workplace where harassment prevention is concerned.

Further details on regulations under the NL Occupational Health and Safety Act (OHS Act) can be found at Gov.NL.ca.

The Nova Scotia Human Rights Act defines sexual harassment as:

  • vexatious sexual conduct or a course of comment that is known or ought reasonably to be known as unwelcome,

(ii) a sexual solicitation or advance made to an individual by another individual where the other individual is able to confer a benefit on, or deny a benefit to, the individual to whom the solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome, or

(iii) a reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.

Sexual Harassment May Include:

  1. Unwelcome remarks, jokes, or innuendoes about a person’s body, gender or attire;
  2. Displaying of pornographic or other offensive or derogatory pictures or written materials;
  3. Unwelcome invitations or requests, whether indirect or explicit, and intimidation;
  4. Unnecessary physical contact such as touching, patting, or pinching;
  5. Reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance;
  6. Leering or other obscene or offensive gestures;
  7. Stalking;
  8. Sexual assault.

Confidentiality

Where an investigation is required, the investigation will be carried out with as much discretion as is consistent with obtaining the information needed to make a decision on the complaint.

Protection Against Retaliation

No member of management or staff will intimidate, discharge, suspend, or impose any other penalty on, or otherwise discriminate against an individual who has made a complaint or given evidence or assisted in any way in the investigation and resolution of a complaint of sexual harassment.

Bad Faith

Employees who make complaints that are fabricated with the intent of damaging the integrity of an individual or individuals will be subject to disciplinary action up to and including dismissal.

Discipline

  1. Disciplinary action for substantiated complaints will range from a verbal or written reprimand to a suspension or dismissal.
  2. A member of management who is in receipt of a harassment complaint or is aware of sexual harassment and fails to take appropriate action will be subject to disciplinary action.

Further details on the Sexual Harassment Policy can be found at Wolfville.ca, or on the QUICK REFERENCE COMPLIANCE GUIDE – NOVA SCOTIA at Justice.gov.nt.ca.

SEXUAL HARASSMENT IN THE WORKPLACE

Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression by his or her employer or agent of the employer or by another employee.  

Sexual Solicitation by a Person in Position to Confer Benefit, Etc.

Every person has a right to be free from:

  • a sexual solicitation or advance made by a person in a position to confer, grant, or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
  • a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant, or deny a benefit or advancement to the person.

Reprisals

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Policies, Violence, and Harassment

An employer shall,

  • prepare a policy with respect to workplace violence;
  • prepare a policy with respect to workplace harassment; and
  • review the policies as often as is necessary, but at least annually.

Program, Harassment

An employer shall, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment.

Contents

  • Set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.
  • Set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.

Duties re: Harassment

To protect a worker from workplace harassment, an employer shall ensure that:

  • an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
  • the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

Information and Instruction, Harassment

An employer shall provide a worker with:

  • information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment; and
  • any other prescribed information.

Further details on the Human Rights Code can be found at Ontario.ca.

SEXUAL HARASSMENT POLICY

“Sexual Harassment” means any conduct, comment, gesture, or contact of a sexual nature that is likely to cause offense or humiliation to any employee, or that might on reasonable grounds be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Responsibilities Of Employers

An employer shall, in consultation with the committee or representative, if any, develop and implement a written policy to prevent and investigate harassment in the workplace that includes:

(a)       a definition of harassment that is consistent with the Act and regulations;

(b)       a statement that every worker is entitled to a workplace free of harassment;

(c)       a commitment that the employer shall ensure, as far as is reasonably practicable, that no worker will be subjected to harassment in the workplace;

(d)       a commitment that the employer shall take corrective action respecting any person under the employer’s direction who subjects a worker to harassment;

(e)       information or procedures about:

(i)         how to make a harassment complaint to the employer or supervisor,

(ii)        how to make a harassment complaint to a person other than the employer or supervisor, if the employer or supervisor is a subject of the complaint,

(iii)       how a harassment complaint will be investigated, and

(iv)       how the complainant and subject of the complaint will be informed of the results of the investigation and any corrective action that has been or will be taken as a result;

(f)        a statement that the employer shall not disclose any identifying information about any person involved or the circumstances relating to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking corrective action with respect to the complaint, or permitted by law;

(h)       a statement that the employer’s harassment policy is not intended to discourage, prevent, or preclude a complainant from exercising other legal rights pursuant to any other law;

(i)        a statement that the employer’s harassment policy does not preclude a worker from filing a complaint under the Human Rights Act R.S.P.E.I.;

(j)        a statement that the employer shall not reprimand, seek reprisal, or discriminate against a worker who has made a workplace harassment complaint in good faith.

Further details on the OCCUPATIONAL HEALTH AND SAFETY ACT WORKPLACE HARASSMENT REGULATIONS can be found at Princeedwardisland.ca.on.

Sexual harassment is a violation of human rights, including basic rights such as: the right to safeguard dignity, the right to privacy, and the right to integrity. All of these rights are protected in Québec by the Charter of Human Rights and Freedoms.

Employer’s Obligations

An employer has a legal obligation to guarantee an environment free of sexual harassment for all employees.

An employer is obliged to:

  • Provide a work environment free from discrimination and harassment.
  • Provide fair and reasonable working conditions.
  • Provide a workplace free from psychological harassment.

In order to prevent sexual harassment and discriminatory harassment in general:

  • Reject any form of harassment, be it sexual, racial, or based on any other type of unlawful discrimination.
  • Protect any staff member experiencing discriminatory harassment, using internal mechanisms for assistance and remedy.
  • Protect all staff members from discriminatory harassment that is perpetrated by outsiders in the course of work.

Employer Liability for Harassment

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that:

1) it reasonably tried to prevent and promptly correct the harassing behavior; and

2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

Further details on the Charter of Rights and Freedoms can be found at Cdpdj.qc.ca.

“Harassment” means any inappropriate conduct, comment, display, action or gesture by a person towards a worker that either:

(1) is based on any prohibited ground as defined in The Saskatchewan Human Rights Code, 2018 or on physical size or weight; or

(2) adversely affects the worker’s psychological or physical well-being and that the person knows or ought reasonably to know would cause the worker to be humiliated or intimidated; and

(i) that constitutes a threat to the health or safety of the worker; or

(ii) any conduct, comment, display, action or gesture by a person towards a worker that is of a sexual nature and the person knows or ought reasonably to know is unwelcome.

An employer shall develop and implement a written policy to prevent harassment after consultation with:

(a) the occupational health committee;

(b) the occupational health and safety representative; or

(c) the workers, if there is no occupational health committee and no occupational health and safety representative.

A policy statement must include any prescribed provisions and an employer shall ensure that an investigation is conducted into any incident of workplace harassment.

Further details on the “THE SASKATCHEWAN EMPLOYMENT ACT” can be found at: Canlii.org.

 

Harassment

(1) “Harassment” means a course of vexatious comment or conduct at a work site that:

(a) is known or ought reasonably to be known to be unwelcome; and

(b) constitutes a threat at the work site to the health or safety of a worker.

(2) To constitute harassment, any one of the following must have occurred:

(a) repeated conduct, comments, displays, actions, or gestures; or

(b) a single, serious occurrence of conduct, or a single, serious comment, display, action, or gesture that has a lasting, harmful effect on the worker’s health or safety.

(3) Harassment does not include reasonable action taken by an employer or supervisor relating to the management and direction of the workers or of the work site.

(4) An employer shall, in consultation with the Committee or representative, or, if no Committee or representative is available, the workers, develop and implement a written policy that includes:

(a) a definition of harassment that is consistent with the Act;

(b) a statement that each worker is entitled to a workplace free of harassment;

(c) a commitment that the employer will make every reasonable effort to ensure that workers are not subjected to harassment;

(d) a commitment that the employer will take corrective action respecting any individual who subjects any worker to harassment;

(e) an explanation of how harassment complaints may be brought to the attention of the employer;

(f) a statement that the employer will not disclose the name of a complainant or an alleged harasser or the circumstances relating to the complaint to a person unless disclosure is necessary for the purposes of investigating the complaint;

(g) a description of the procedure that the employer will follow to inform a complainant and alleged harasser of the results of an investigation; and

(h) a statement that the employer’s harassment policy is not intended to discourage or prevent a complainant from exercising other legal rights.

(5) An employer shall make a copy of the policy readily available to workers.

Sexual Harassment

Sexual harassment is a type of harassment, which is conduct, comment, or a gesture that is of a sexual nature and is offensive, unsolicited, or unwelcome.

There are two potential types of sexual harassment. “Quid pro quo”, which is sexual solicitation or advances by someone in a position to confer employment-related benefit (or deliver reprisal if solicitation is refused), and “Poisoned atmosphere”, which is inappropriate comments, gestures, materials, and propositions being present in the workplace.

“Of a sexual nature” covers a broad range of actions and comments, such as:

  • physical contact
  • gestures with sexual content,
  • verbal conduct,
  • insults based on gender.

Further details on the Occupational Health and Safety Regulations can be found at Justice.gov.nt.ca

Violence and Harassment Prevention Policy Statement and Procedures

  • Every employer must, in relation to each of the employer’s workplaces, develop a written policy statement and procedures respecting the prevention of violence and harassment, and implement those procedures.
  • The policy statement and procedures must be developed in consultation with the committee or the health and safety representative, if the employer is required under the Act to establish a committee or have a health and safety representative for the workplace, or the workers in the workplace.

Content of Violence and Harassment Prevention Policy Statement

  • A statement that violence and harassment in the workplace are prohibited;
  • A statement that every worker is entitled to employment free of violence and harassment;
  • A statement that workers have the right to bring complaints of violence or harassment to the employer or, if the employer is the person alleged to have committed the violence or harassment, to persons other than the employer.
  • A statement that any personal information that is disclosed in respect of an incident or complaint of violence or harassment will be the minimum amount necessary for the purpose for which it is being disclosed;
  • A statement that the policy statement and procedures do not limit workers in the exercise of any other rights pursuant to any other law.

Content of Violence and Harassment Prevention Procedures

  • A description of the measures that the employer is to take to eliminate or, if that is not practicable, control the risk of injury to workers from violence and harassment in the workplace.
  • The procedure to be followed by a worker when bringing a complaint of violence or harassment to the employer, including how and when to report;
  • The procedures to be followed by the person who becomes aware of an incident of violence or harassment or to whom a complaint of violence or harassment has been brought.

Investigation

An employer must ensure that an investigation that is appropriate in the circumstances is conducted into each incident and each complaint of violence or harassment is completed without delay. The person who conducted the investigation must prepare a report of the investigation in writing and deliver it to the employer.

The employer must, at its own expense and without delay after receiving a report prepared under paragraph, provide a copy of it to the officer and all affected parties.

Further details on the OCCUPATIONAL HEALTH AND SAFETY ACT can be found at Wcb.yk.ca.