A Short Guide to Defining Workplace Harassment

Harassment is “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

It can be broken down as follows:

The word “course” means repeated. However, case law has established that a very serious single incident can also be harassment.
“…comment or conduct.” Harassment can be words or actions.
“Vexatious” means offensive.
“…known or ought reasonably to be known to be unwelcome.” Objectively, did the harasser know their comment or conduct was unwelcome? For example, did the person who was harassed tell them it was unwelcome? Subjectively, would a reasonable person similarly situated to the complainant consider the conduct to be unwelcome?

Human Rights Law and Occupational Health and Safety Regulations

Human rights law classifies workplace harassment as a kind of discrimination. Workplace harassment, discrimination must be related to a protected ground. These grounds can vary according to jurisdiction but generally include the following:

race
ancestry
place of origin
colour
ethnic origin
citizenship
creed (religion)
sex (includes gender identity and pregnancy)
sexual orientation
age (18 years or more)
marital status
family status
disability (includes perceived disability)

Occupational health and safety regulations typically define workplace harassment more broadly so that the harassing conduct does not have to be related to a covered ground of discrimination. This encompasses behaviour that can be described as bullying or psychological harassment.

Sexual Harassment

Sexual harassment gets added attention in both human rights and health and safety law. The standard definition still applies:

Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome.

Note that the ground of sex includes conduct that is sexual or conduct that is vexatious related to gender. Note too, that the definition usually includes protection for Gay, Lesbian, Bi-sexual, Transgender and Queer (GLBTQ) communities.

There is also a special type of sexual harassment:

Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

In other words, it is a violation for a person in authority to make an unwelcome sexual “come on” to a subordinate.

Examples of what constitutes harassment (Source- Canadian Human Rights Commission)

Preventing a person from expressing himself or herself: yelling at the person; threatening; constantly interrupting that person; prohibiting the person from speaking to others.
Unwanted sexual advances which may or may not be accompanied by threats or explicit or implicit promises.
Making rude, degrading or offensive remarks.
Making gestures that seek to intimidate.
Engaging in reprisals for having made a harassment complaint.
Discrediting the person by spreading malicious gossip or rumours, ridiculing him/her, humiliating him/her, calling into question his/her convictions or his/her private life, shouting abuse at him/her.
Compelling the person to perform tasks that are inferior to his/her competencies that demean or belittle him/her, setting the person up for failure, name calling in private or in front of others.
Isolating the person by no longer talking to him or her, denying or ignoring his or her presence, distancing him or her from others.
Destabilizing the person by making fun of his or her beliefs, values, political and/or religious choices, and mocking his or her weak points.

Examples of what constitutes harassment (Source- Canadian Human Rights Commission)

Normal exercise of management’s right to manage the day-to-day operations, performance at work or absenteeism, the assignment of tasks, reference checks, and the application of progressive discipline, up to and including termination, constitute the legitimate exercise of management’s authority. While exercising the normal managerial functions is not harassment, how such functions are exercised can risk giving rise to the potential for harassment or perceptions of harassment.
Workplace conflict in itself, does not constitute harassment but could turn into harassment if no steps are taken to resolve the conflict.
Work related stress in itself does not constitute harassment, but the accumulation of stress factors may increase the risk of harassment.
Difficult conditions of employment, professional constraints, and organizational changes.
A single or isolated incident such as an inappropriate remark or having an abrupt manner.
A social relationship welcomed by both individuals.
Friendly gestures among co-workers such as a pat on the back.

Poisoned Environment

Insulting or degrading comments or actions in a workplace may cause employees to feel that the workplace is hostile or unwelcoming. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.”

The conduct does not have to be directed at a specific individual. For example, where a supervisor regularly yells and swears, a worker or workers may find the conduct intimidating or disrespectful.

HR Proactive Case Examples

A worker had strong anti-Muslim views. He often became angry and used crude and violent language in discussions where others disagreed with him. Findings: while there was no complainant and no one identified as Muslim, during an audit, workers reported being intimidated and upset by the conduct, essentially reporting a poisoned work environment. The human rights ground of creed was also a factor in this case. Conclusion: workplace harassment.

Two workers, a man and a woman, travelled long distance to a conference. Upon arrival, they had dinner and drinks together. Both discussed that they had long term relationships with others. After dinner, the man accompanied the woman back to her room and asked to use the washroom. They then talked. She fell asleep and woke up with him on top of her trying to remove her clothes. Finding: A single incident that was serious enough to be harassment. (The woman declined to report it to the police.) Conclusion: sexual harassment.

A Vice-Principal complained that the Principal was cold and non-collegial. She did not share control in the same way as other Principals in the V.P.’s experience. The V.P. felt that her development was being blocked. Findings: The Principal had previously operated for many years with no V.P. in the small school. She believed that leaders should maintain a distance from staff. The evidence did not indicate that she was disrespectful. Conclusion: appropriate exercise of management authority and not workplace harassment.

The Complainant worked in a small electronic assembly shop owned and managed by the Respondent. They had a disagreement over a company rule. The Respondent regularly complained to the Complainant’s co-workers about his failure to comply with the rule but did not warn him or take disciplinary action. A machine malfunctioned while the Complainant was operating it and, in a general meeting, the respondent chastised him and asked other workers if they believed the complainant’s account of the incident. Finding: The Respondent’s conduct effectively intimidated, humiliated and isolated the complainant. Conclusion: workplace harassment in the form of bullying.

The Complainant worked in a supporting role. There was an error regarding the attendance of a client to an appointment with the Respondent, a professional. The Respondent reacted angrily, slammed cabinets and cursed in a loud voice. The Complainant told her she was making her uncomfortable and asked her to stop. Later, at a public event, there was a mix-up regarding seating and again the Respondent reacted angrily, yelled and pointed her finger at the Complainant. Subsequently, the Respondent used a social platform to engage others at work and blamed the Complainant for the incident. Finding: the repeated conduct intimidated, isolated and humiliated the Complainant. Conclusion: workplace harassment in the form of bullying.

The Complainant had a history of absenteeism The owners of the business went on vacation and left the Respondent in charge. On December 22, the Complainant failed to arrive at work as scheduled at 7 a.m. He called in at 10 a.m. to say he was ill, the Respondent said okay and that there was no other work that day anyway and if there was work the following day (the last work day before the Holiday), she would call him. The Complainant understood instead that he would be called if there was no work on December 23 as this had been past practice when the owners were present. He reported at 7 a.m. on December 23 but was told there was no work. After the holiday, the Complainant claimed four hours pay for December 23. The Respondent became angry, yelled and used offensive language. When the owners returned, they paid the Complainant. Finding: while the conduct was inappropriate, it was a single incident and not serious enough to meet the definition of harassment. Conclusion: No workplace harassment.

The Respondent supervised students hired temporarily in the summer. Two young women complained that the Respondent made frequent comments related to their gender, calling them “babe,” “good-looking” and saying they should be models. Finding: While the complainants did not specifically object to the Respondent, he should have known that the conduct was unwelcome. Many reasonable women would find references to their physical appearance based on gender objectional in the workplace. Conclusion: sexual harassment.

A nurse in a hospital complained that a doctor made sexualized and negative comments about women, including for example, that older women had to go the bathroom more often, that a worker was “smart for a girl” and that another nurse was sexually promiscuous. He asked the complainant if she “twerked” (i.e. engaged in a sexually provocative form of dancing). The doctor admitted the comments but said that most were not directed at the Complainant and that otherwise he was being casual and joking. Findings: The Complainant and other women in the workplace found the conduct offensive. While the Respondent did not intend to offend, it is the effect of the conduct that it is determinative. Conclusion: poisoned environment sexual harassment.