…and what you can do about it
This post is about the legal route to dealing with workplace sexual harassment through Ontario’s workplace rights mechanisms. For tips on how to deal more informally with people crossing your boundaries at work, see our post on Boundaries, Consent, and Sexual Assault.
What is sexual harassment?
Sexual harassment is against the law. The Ontario Human Rights Code (OHRC), Ontario provincial human rights law, defines sexual harassment as harassment based on your sex, sexual orientation, gender identity or gender expression, that happens in situations where the OHRC applies. The OHRC applies in the following areas: workplace, housing, while receiving services and facilities, when you enter into a contract, and when you are a member of a professional association or union.
Harassment means comments or actions that are not welcome or should be known to be unwelcome. It includes behaviour that offends, insults or humiliates you. Sexual harassment can come from a co-worker, a supervisor or boss, clients or customers. Harassment is often a pattern of behaviour that occurs over a period of time, but can also be a serious one-time incident. For example, if the club manager makes sexual comments that make you uncomfortable when you interact with him, this is sexual harassment. An example of a serious one-time incident would be if a bouncer tries to extort sex from you for breaking club rules. It is also workplace sexual harassment if a client takes a non-consensual photo of you while you are on stage or doing a private dance.
Sexual harassment can include:
- unwanted touching
- asking for sex in exchange for something, like a job opportunity
- asking for dates and not taking “no” for an answer
- posting or sharing sexual pictures (including online)
- making sexual jokes
- bullying someone based on their sex or gender, including for being trans
- spreading sexual rumours or gossip (including online)
For more information about how the Ontario Human Rights Code defines sexual harassment, see OWJN’s article: Sexual Harassment and the Law: What is Sexual Harassment?
How does the law protect me from sexual harassment in the workplace?
There are two laws in Ontario that deal with sexual harassment in the workplace: The Ontario Human Rights Code (OHRC) and the Occupational Health and Safety Act (OHSA). Both the OHRC and the OHSA apply to independent contractors like strippers in Ontario (see our page on independent contractors).
The OHRC protects you from sexual harassment in various areas of your employment, for example, during a job interview, when you are doing volunteer work or internship, and even when you are involved with work-related activities outside of business hours or your place of work. For example, it is illegal for your manager to make lewd comments to you while you are having a cigarette in the parking lot.
In Ontario, employers have a legal responsibility to prevent sexual harassment and take action when it happens. The OHRC says that employers are supposed to make sure that their company or organization has a healthy working environment. They should have clear policies against sexual harassment. The policies should include the details about how the employer will deal with the sexual harassment and the rights and responsibilities of everyone involved. Employers must make sure that everyone in the workplace knows about these policies.
When an employee makes a complaint of sexual harassment, employers are supposed to take it seriously and respond quickly. According to the OHRC, the employer has a legal duty to investigate the complaint and do something to stop the harassment and prevent future harassment, if the investigation shows that harassment occurred.
The Occupational Health and Safety Act (OHSA) is a law that protects workers against health and safety hazards at work. Workplace hazards also include violence and harassment, including sexual harassment. The definition of sexual harassment in the OHSA covers the same behaviour that would be sexual harassment and discrimination under the Ontario Human Rights Code. The OHSA defines workplace sexual harassment as any vexatious (harmful) comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the comment or conduct is known or should reasonably be known to be unwanted. It also includes unwelcome requests or advances from a manager, supervisor or someone who has the power to punish or give benefits to the worker.
Under the Occupational Health and Safety Act (OHSA), your employer must:
- prepare written policies about workplace violence and workplace harassment, including sexual harassment, and post them in a visible location
- develop procedures for workers to report incidents of workplace violence and harassment
- explain to employees what the sexual harassment policy is and how it works
- review policies at least once a year
Under the OHSA, an employer must also take every reasonable precaution to protect a worker when the employer is aware, or should reasonably be aware, that domestic violence may occur in the workplace, and that it would likely expose a worker to physical injury. An abusive partner might come to their partner’s workplace to hurt or harass that worker. In other cases, both partners may work together and if there is violence in the relationship, it could spill over into the workplace. In these situations, domestic violence is considered workplace violence. For detailed information about your rights and your employer’s responsibilities under the OHSA, see OWJN’s article: Workplace Violence and Harassment: Occupational Health and Safety Act.
What can I do if I have been sexually harassed at work?
If your employer is not doing anything about the harassment, or if you are not happy with the way they have dealt with it, or if your employer is the one harassing you, you can file a human rights complaint with the Human Rights Tribunal of Ontario. You have to file the complaint within one year of the last incident of sexual harassment. For more information about how to make a Human Rights Complaint, see OWJN’s article: How do I make a Claim under the Ontario Human Rights Code?
If your employer is not fulfilling their responsibilities under The Occupational Health and Safety Act, you can also make a complaint to the Ministry of Labour. The Ministry of Labour can order an independent investigation into a complaint of workplace harassment.
If you have been the subject of workplace violence or harassment, you might consider bringing a civil lawsuit or criminal charges. Not all abusive, unfair or cruel actions are against the law. To pursue someone in the court system, you must have suffered a type of harm that is recognized by the law.
Many people feel that going to court will allow justice to be done, will bring them closure, or will act as a deterrent, to prevent their harasser or others in the workplace from repeating the same behaviour. There are also reasons people may prefer to avoid legal action. Legal proceedings can be expensive and take a long time, from months to years. Some people may find this lengthy process only adds to the trauma of the initial event.
Depending on the type of harm you’ve suffered and your goals, one of these two legal options—criminal charges or a civil suit—may be more appropriate than the other. You must have a legally recognized claim in order to pursue either a civil or a criminal case. It is very important to get legal advice from a lawyer to find out what the best option is for your situation.
This post is adapted (with permission) from OWJN’s article on workplace sexual harassment.