Friday, 14 February 2014

Sexual Harassment -- Employment Law Advice

Sexual Harassment -- Employment Law Advice

by Darryl A. Aarbo, Barrister and Solicitor

This is only anecdotal evidence, by sexual harassment in the workplace tends to cluster around certain days and events in a year: holiday (Christmas) parties, Stampede events (Calgary only obviously); St. Patrick’s Day and even Valentine's Day. The first three are obvious, if you have ever been to a large corporate holiday party or a corporate Stampede event in Calgary then you know that large amounts of alcohol can be consumed in a short period of time with co-workers being in close proximity of each other. Alcohol and work events are a dangerous mix.

Valentine's Day can also be a dangerous day. It is not traditionally an alcohol based event, but like buying a puppy for someone at Christmas, sexual advances to a co-worker on Valentine's Day can seem like a good idea at the time, but a little later can result in a big problem. It’s all in the planning and execution. Sometimes it is best to avoid the big "holidays" to avoid big expectations and pressure.

Mutually acceptable workplace flirtation is not sexual harassment. The key words being "mutually" and "acceptable". Co-workers are allowed to ask each other out on a date, but if it is a person in authority over a subordinate employee then problems can arise. Also, repeatedly asking someone out can also be harassment even if each request is innocuous in itself, but how many times does it take get you a date with someone playing hard-to-get and how many times does it take to get fired for sexual harassment?  Gifts delivered at work to an unsuspecting co-worker in front of the rest of the staff may or may not be sexual harassment depending on the gift and circumstances, but it can be a very awkward situation and may mean a trip to the human resources manager a bit latter on for a discussion on proper workplace behaviour if you got the “signals” wrong. Obviously overt sexual remarks and advances are wrong. Touching is always wrong, as well as showing sexualized images and innuendo.

Problems arise because sexual harassment is a very subjective thing and some employers are simply not prepared for the subtle occurrences of sexual harassment.  That is why Valentine's Day can be a much riskier day than others. It is pretty obvious that getting drunk and making a lewd remark or advance is wrong and can easily end in termination, but what about sending flowers to a co-worker in front of everyone when she does not know they are coming? What happens if he or she does accept the request to go out on a date and it is a disaster and you have to work together on Monday morning? What if a relationship commences between a manager and subordinate that is originally consensual but ends in tears and a complaint to the human resources manager.  These little subtleties can be much trickier to navigate than a serious and obvious offense. 

It is extremely important that all employers, regardless of size, have a clear, accessible and enforced harassment policy. Employees need to know the boundaries and need to know the rules will be enforced fairly and consistently at all times. It is the employer’s legal responsibility to ensure a safe workplace in world where human beings will be human beings.  The key is to be prepared before the inevitable complaint gets made. 

Happy Valentine's Day!

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*

Darryl's bio:

I have copy and pasted the Alberta Human Rights Commission's Information sheet on sexual harassment:

Sexual harassment


A printable PDF version of this information sheet is available.

What is sexual harassment?

Sexual harassment is discrimination based on the ground of gender, which is prohibited under the Alberta Human Rights Act. Sexual harassment is any unwelcome sexual behaviour that adversely affects, or threatens to affect, directly or indirectly, a person's job security, working conditions or prospects for promotion or earnings; or prevents a person from getting a job, living accommodations or any kind of public service.

Sexual harassment is usually an attempt by one person to exert power over another person. It can be perpetrated by a supervisor, a co-worker, a landlord or a service provider.

Sexual harassment is unwanted, often coercive, sexual behaviour directed by one person toward another. It is emotionally abusive and creates an unhealthy, unproductive atmosphere in the workplace.

Employees, customers or clients can make sexual harassment complaints to the Alberta Human Rights Commission. These complaints can be costly, both in terms of financial costs and employee morale, particularly for employers who do not have an effective sexual harassment policy in place or who do not treat such complaints seriously.

Who is affected?

Males, females and transgendered [1] individuals can all experience sexual harassment. Sexual harassment can occur between individuals of different geners (for example, male to female) or between individuals of the same gender (for example, female to female).

What constitutes sexual harassment?

Sexual harassment can be expressed in many ways, from very subtle to very obvious, through any of the following:

  • suggestive remarks, sexual jokes or compromising invitations;
  • verbal abuse;
  • visual display of suggestive images;
  • leering or whistling;
  • patting, rubbing or other unwanted physical contact;
  • outright demands for sexual favours; and
  • physical assault.

Sexual harassment and workplace romance

Mutually acceptable workplace flirtation is not sexual harassment.

Who is legally responsible?

The Supreme Court of Canada has decided that in cases of proven sexual harassment, employers are responsible for the actions of their employees.

Lack of awareness by management does not necessarily eliminate this liability.

Employer responsibilities

In Alberta, employers are responsible for maintaining a work environment free from sexual harassment for all employees, customers and clients.

A supervisor who neglects to follow up on a complaint of sexual harassment may be liable under the Alberta Human Rights Act for failing to take prompt and appropriate action.

Having an effective sexual harassment policy in place can decrease an employer's liability if a human rights complaint is made. Prompt and appropriate action on sexual harassment complaints can reduce an employer's liability still further.

Sexual harassment policy development

Commission staff can help employers develop sexual harassment policies. Staff can also provide educational workshops to help employers, managements and employees understnd their rights and responsibilities related to sexual harassment in the workplace. Please contact the Commission for more information about these services.

What to do about sexual harassment

Anyone who believes they has been sexually harassed should first make it clear to the offender and/or to a person in authority that such action has occurred and is unwanted. Employees who are harassed may also wish to contact their union or employee association.

If the behaviour persists, or corrective action is not taken, a complaint may be made to the Alberta Human Rights Commission. A complaint must be made within one year of the alleged incident or the Commission does not have the authority to accept the complaint.

For the purposes of investigation, a record should be kept of when the alleged incidents occurred, the nature of the behaviour, the names of any witnesses and any other information relevant to the investigation.

It is against the law to retaliate against anyone who has made a compliant of discrimination in good faith or who has given evidence in support of or against a complaint.
Footnote1. The words "transgender" and "transgendered" are used to refer to people who identify as either transgender or transsexual. The Ontario Human Rights Commission offers a helpful definition of gender identity on its website: "Gender identity is linked to a person's sense of self, and particularly the sense of being male or female. A person's gender identity is different fom their sexual orientation, which is also protected under the [Ontario Human Rights] Code. People's gender identity may be different from their birth-assigned sex, and may include:
Transgender: People whose life experience includes existing in more than one gender. This may nclude people who identify as transsexal, and people who describe themselves as being on a gender spectrum or as living outside the gender categories of 'man' or 'woman.'
Transsexual: Peope who were identified at birth as one sex, but who identify themselves differently. They may seek or undergo one or more medicat treatments to align their bodies with their internally felt idenityt, such as hormone therapy, sex-reassignment surgery or other procedures."
Please note: A complaint must be made to the Alberta Human Rights Commission within one year after the alleged incident of discrimination. The one-year period starts the day after the date on which the incident occurred. For help calculating the one-year period, contact the Commission.

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