Harassment in the workplace has no boundaries— anyone can be the harasser, including managers, co-workers, and customers.
Just one incident can constitute harassment – depending on the circumstances. Furthermore, workplace harassment can occur “off duty” (such as on business trips, at conferences, at social events, or on the Internet).
What is harassment?
Harassment in the workplace falls into two main categories:
- • discriminatory harassment (or harassment based on a protected ground under human rights legislation, such as age, sex, sexual orientation, disability, and race); and
- • personal harassment (or bullying behaviour)
Some examples of harassment include:
- • Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences, including offensive and persistent risqué jokes about sex or gender-specific traits;
- • intimidating, demeaning or offensive verbal or physical conduct;
- • displaying degrading or humiliating images or materials;
- • taunting or ostracism.
Is poor performance review harassment?
Sometimes employees feel that a poor performance appraisal constitutes harassment. “Reasonable” performance management and direction to workers will not be considered “workplace harassment”. A Bill scheduled to be introduced into law shortly codifies this current state of the law. This is still good news for employers who, from time to time, are faced with frivolous harassment complaints from employees claiming that, for example, a poor performance appraisal constitutes harassment.
If you are an employee – the question will be whether the review is “reasonable”.
What are the Damages for harassment?
Damages for successful harassment complaints for employers can be substantial – depending upon the circumstances.
In cases of discriminatory harassment (such as sexual harassment), money can be ordered to a successful complainant, for lost wages, expenses, and damages for injury to dignity, feelings, and self-respect.
In cases of personal harassment, liability most often arises through a constructive dismissal claim whereby employees seek severance pay, and sometimes additional damages, for resignations forced by hostile work environments.
Whether an employer is found responsible or liable in any given case depends on the individual facts, but the most common traits found in cases where liability has been imposed include:
- • a lack of, or lack of enforcement of, a workplace harassment policy;
- • lack of education or training in the workplace on harassment identification and prevention;
- • inadequate handling of harassment complaints, and failure to properly investigate complaints; and
- • ignoring, becoming wilfully blind to, or condoning harassment in the workplace.
Liability for harassment in the workplace does not stop with the employer. In cases of discriminatory harassment, for example, complaints may be brought against both the employer and individual employees who are personally involved in the harassing behaviour. The saying, “An ounce of prevention is worth a pound of cure”, has never been more true than with harassment. A prevention program is key to protecting organizations and individuals from liability.
What is sexual harassment in the workplace?
In July 2016 the Ontario Government expands the definition of “workplace harassment” to include sexual harassment. Bill 132 revises the Ontario Health and Safety Act’s definition of “workplace harassment” to include “workplace sexual harassment” – which will be defined as follows:
- • 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; or
- • 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.
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