Sexual harassment in the workplace in Canada is often thought of as a thing of the past. Sure, there are lots of law suits in the States, but that’s because they sue everyone. We’d like to think things are different in Canada, but tragically, sexual harassment is still alive and unwell in many Canadian workplaces, whether the private sector, the public sector or the non-profit sector. And in Canada, just like the United States, sexual harassment is bad for business.
But is sexual harassment just about sex?
In 1989, then-Chief Justice Brian Dixon of the Supreme Court of Canada, in a unanimous decision, said
“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…an abuse of power… [that] attacks the dignity and self-respect of the victim both as an employee and as a human being." (emphasis added)
Today, the italicized part of that decision serves to define sexual harassment in Canada. To prove sexual harassment, a person needs to show he or she:
1 - Endured unwelcome sexual attention AND
2 - The unwelcomed sexual attention had detrimental or negative consequences.
While the consequences can be the classic, “You show me some sexual attention and I'll let you keep your job,” they don't have to go that far.
A person who endures provocative pictures on the wall, or sexual jokes told in the lunch room may be subjected to sexual harassment if it has a negative impact on their work. This is often referred to as a tainted, poisoned or hostile work environment. Hence, sexual harassment isn’t just about sex.
Since the courts have ruled that sexual harassment is a form of sex discrimination, treating women negatively while treating men positively can constitute sexual harassment. In other words, if snide or rude comments are made to women but not to men, and they negatively impact the women's workplace comfort level, this is sexual harassment. The reverse is also true if men are the predominant targets.
My advice is to think of sexual harassment as more than the textbook case of a lecherous male boss. Non-sexual negative comments towards one particular gender, or a man harassing a man, or a woman harassing a woman all qualify as sexual harassment. That said, it should come as no surprise that most sexual harassment still involves a man sexually harassing a woman. And you’d be surprised where sexual harassment can occur….such as outside the workplace.
Sexual harassment away from work
If an employee does something outside of work that has a negative impact back in the workplace, the employer may well find himself or herself dealing with a sexual harassment problem. Otherwise, imagine the loopholes, especially given today’s technology. Ed would just have to wait until after work to send lewd e-mails, faxes, and voice mail messages to his co-worker Tricia’s home. Or he could go low-tech and leave sexually explicit messages under her car’s windshield wipers.
Back at work, of course, Ed acts like a perfect gentleman. But if Tricia is disturbed by his actions, and we apply the definition of sexual harassment, what have we got? An employee receiving sexual attention she doesn't want, with negative consequences: a tainted work environment. Tricia is on edge all the workday wondering what Ed will pull next.
I investigated just such a case for a client. One night after their shift in the company parking lot, an employee asked a female colleague if she'd like a ride home. Having no reason to suspect anything except courtesy from a fellow worker, she accepted the ride. As soon as she noticed he was going in the wrong direction, she asked to be taken home or at least dropped off. He told her he just needed to pick up something from his apartment and then he'd take her home. As soon as he parked the car in his underground garage, she leapt out and escaped. She made her way back to the workplace, completely distraught.
Since she never made it to his apartment, we'll never know what his final motives were. The company hired me to investigate; in the meantime, the male employee was placed on an unpaid leave of absence. His union, protecting his interests, argued that since all of this had happened outside the workplace, it wasn’t a workplace harassment case. But it was. His actions were related to his workplace relationship with this woman.
In the end, the company fired him, but stipulated that if he underwent counselling and was able to show he was no longer a threat to women in the firm, he could have his job back. He declined to pursue this option, his union's grievance was dropped, and his termination of employment was upheld.
Most sexual harassment cases off workplace property are not as severe, and do not end up with a person being fired. In my experience, most involve booze, parties or an infatuation. As the late comedian Phyllis Diller once said, "What I don't like about office Christmas parties is looking for a job the next day." Perhaps we should encourage employees to take that to heart. When companies hire me to train employees about sexual harassment issues, they often ask me to dwell a little on booze and company outings, thanks to unfortunate incidents in their past.
Not that employees shouldn’t socialize after hours. When problems do occur, most off-premises conflicts do not involve sexual harassment. Personality conflicts or other problems that don't fit the definition of sexual harassment do not have to be settled with a harassment policy or procedure. You might have a problem on your hands, but it’s usually not sexual harassment. But when it is sexual harassment outside work, you can minimize these off-premise issues becoming a bigger problem by letting employees know even their actions off the worksite can become a workplace concern.
Infatuations are particularly tricky to identify and deal with. Sometimes the person with the infatuation needs counselling of some kind. But most times they do not. The role of a supervisor is simply to let the spurned employee know he needs to keep his feelings in check, while ensuring that the object of his desires feels completely comfortable bringing any problem to your attention. While an infatuation might seem “incurable” the fact is even heart-struck employees can calm themselves down when they know there will be consequences, such as being disciplined, or worse, being fired. Start from the assumption that a simple conversation can correct the inappropriate behaviour. If that’s not good enough, step up the consequences and/or talk to someone higher up or in human resources to get some help.
How to put a stop to sexual harassment at work if you are a supervisor or manager:
Take any comment or complaint seriously. It could be a false complaint or a malicious complaint, or a misunderstanding, but whatever you do, don’t dismiss it out of hand. Many, many well-documented and litigated Canadian cases involving workplace sexual harassment start from a legitimate complaint, but are ignored or not properly investigated (even simple follow-ups).
Get details. It doesn’t take much to ask a few questions. If it’s more complex, then you might need more of an investigation, but if it’s not yet a formal complaint, it might not need a formal investigation. Ask a few questions and you’ll usually find the truth. If there’s more to it, or it does need some other assistance, then ask for some. Strangely enough, usually simple questions will get simple and honest answers.
Find out what the harassed employee wants. If it’s reasonable, then get what the employee wants. It could be “I just want it to stop” or “I’d like an apology” or “I’d like him to understand what he’s doing”. Most people who are harassed, don’t ask for unreasonable responses…most just do want the inappropriate behaviour to stop. If the request is unreasonable, explain what can be done and what is reasonable. If there’s a dispute, get some assistance.
Take action. This is where most supervisors fall down. They know it’s going on, but they don’t take action or appropriate action. It’s simple…explain what’s inappropriate, tell the person it has to stop right now, spell out any consequences now or if compliance doesn’t occur and get an agreement. That’s pretty much the simple formula…but most people don’t follow it. If you do and stick to your guns, most problems will be resolved simply.
Hold the employee to account. If the previous formula is followed, this is often another place where supervisors fall down…they don’t hold the offender to account. Meaning everyone comes to an understanding about the wrong behaviour and how things have to change, but over time the inappropriate behaviour comes back and nothing is done to hold the person accountable. If an offender gets into the same or similar inappropriate behaviour, go back to square one, or up the consequences and discipline. Again, it’s rather simple, but when done properly, it’s very, very effective. Oh, and others will figure out they better stay away from inappropriate behaviour as well.
How to put a stop to sexual harassment at work if you are an employee:
Speak up. You may be fearful of repercussions and other weird behaviour, but if you can, you must speak up to say what’s inappropriate and what you don’t appreciate. Believe it or not, many times people don’t think their behaviour is wrong and they don’t realize it’s a problem. You’d be surprised and so will he when you let him know, but it’s the first thing you should do, if you can do it. And since it might not be comfortable, don’t wait for everything to be perfect…you may never get that chance.
Get an agreement for different/better behaviour. If you do speak up and your colleague realizes what’s wrong, then make sure he knows what he must do, or avoid doing, in the future. Make sure it’s not ambiguous.
Talk about consequences. Let’s say you don’t get an understanding and agreement for better behaviour. In that case, let the person know that you’ve made it clear what is acceptable and what is not and if it continues, you will be talking to someone about a more formal process, or you will be escalating the process. The person will be warned and while he might have been reluctant to change, if he gives it more thought, he might realize it’s not worth the effort and will in fact change his inappropriate behaviour.
Get assistance. This could mean simply talking to a supervisor or someone in human resources (or someone in charge if you don’t have an HR department), or it could mean consulting your workplace harassment policy and deciding which step to take. Most policies will have an informal approach and a formal approach, so you can see what is appropriate, talk to someone about the options and decide what to do. Most times people want to resolve issues informally, but that can be discussed.
Don’t be afraid to follow up. Let’s say everything gets resolved and things have improved. If this person or another colleague gets into more inappropriate behaviour, follow up, either with the offender, or with the supervisor or person you dealt with earlier. Don’t be afraid you’ll seem like a whiner if you’re just asserting your basic right to have a respectful workplace.