Under Ontario’s Occupational Health and Safety Act (OHSA), workplace harassment includes “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
The definition can be broken down as follows:
Source: Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 1(1); Ontario Ministry of Labour, Immigration, Training and Skills Development, Code of Practice to Address Workplace Harassment.
Human rights law classifies workplace harassment as a kind of discrimination. To constitute discrimination under human rights law, workplace harassment must be related to a protected ground. These grounds can vary according to jurisdiction but generally include the following:
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 receives particular attention in both human rights and occupational 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.”
The ground of sex includes conduct that is sexual in nature or vexatious conduct related to gender. The definition also generally includes protections related to sexual orientation, gender identity and gender expression.
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 a position of authority to make an unwelcome sexual advance toward a subordinate.
Source: Canadian Human Rights Commission
Source: Canadian Human Rights Commission
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, when a supervisor regularly yells and swears, workers may find the conduct intimidating or disrespectful.
A worker had strong anti-Muslim views. He often became angry and used crude and violent language in discussions where others disagreed with him.
Finding: 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 a 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. The principal did not share control in the same way as other principals in the vice-principal’s experience. The V.P. felt that her development was being blocked.
Finding: 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 there was no other work that day and that she would call him if there was work the following day (the last workday before the holiday). 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 objectionable 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.
Finding: 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 is determinative.
Conclusion: Poisoned environment sexual harassment.
