Sexual harassment. It’s an issue that can change lives, and threaten decade long careers.
Perhaps it has happened to you. Maybe your voice contributed to the #MeToo or TimesUp movements.
Perhaps you fear being accused.
What Is Sexual Harassment?
In one of Canada’s leading cases on sexual harassment, Janzen v. Platy Enterprises Ltd., the Supreme Court of Canada identified three key elements of workplace sexual harassment:
- Conduct of a sexual nature, which is gender based,
- Conduct that is unwelcome, and
- Conduct that detrimentally affects the work environment or leads to adverse job- related consequences.
Sexual harassment can occur between two people of the same or opposite sex.
The behavior may be overt or discrete.
An intention to harass is not required.
It need not be directed toward a specific individual. It is sufficient that a person’s actions create a hostile or poisoned work environment.
If You Have Been Sexually Harassed
If you are being sexually harassed, document as much as you possibly can (actions, words, witnesses), and consider taking the following steps:
- Say “no,” clearly. Let the person know that this behavior is not appealing to you. Ask the person to stop. Do so in writing. This is an important first step toward putting the other person on notice that the conduct is unwelcome, and that it must stop.
- Consider retaining an experienced employment lawyer to provide advice and act on your behalf. This can reduce the emotional turmoil of directly handling the case yourself, and assist in advancing your case.
- Consider complaining. If you have put the other person on notice, but the behavior persists, consider complaining to:
- someone in a position of authority or in your employer’s human resource department. Many employers have specific policies and procedures in place for handling these complaints. If you are unionized, talk to your union representative or shop steward. Document your discussions. If you experience a negative response or feel you are being retaliated against, document that too.
- the British Columbia Human Rights Tribunal. The BC Human Rights Clinic provides free representation to complainants who have cases before the Tribunal.
If there is a chance you might want to pursue it, seek advice immediately. This is because the British Columbia Human Rights Code requires a complaint to be filed within 6 months.
If You Are Accused
If you have been accused of sexual harassment:
- Consider retaining an experienced employment lawyer to act on your behalf. This can reduce the stress associated with being accused, and assist you in determining how to respond.
- Take it seriously. Your job may be at risk.
- Cooperate with your employer. Document this. Recognize that what you say and do may later be scrutinized in court.
If You Are An Employer
If you are an employer, an effective way to reduce the chance of this happening, and to better respond to any future complaints, is to develop and implement a harassment policy.
Much can be done to clearly communicate your expectations as an employer, and to educate your staff. This is best done before a problem arises, rather than after.
If you are an employer and you have received a sexual harassment complaint, consider the following steps:
- Consider obtaining legal advice from experienced employment lawyers to assist you in determining how to respond.
- Warn the alleged offender, and ask him or her to immediately stop the alleged conduct, or possibly suspend the person while you investigate. Document this.
- Investigate the complaint, if possible using an impartial and objective investigator. Ensure that the process is fair. Document this. If you use a lawyer to investigate, consider using someone other than your usual counsel. Doing so can help avoid unnecessary legal risks.
- If the conduct was sufficiently serious or repetitive, consider dismissing the offender from his or her employment, possibly for cause. In serious enough cases, a warning may not be required.
The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org.