What Evidence to Prove Harassment?
Harassment is defined as improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. Each of the above elements must be present to establish harassment.
Criteria to Prove Harassment
Harassment is serious. To substantiate harassment allegations, it must be demonstrated that, according to the balance of probability:
The harasser displayed an improper and offensive conduct including objectionable acts, comments or displays, or acts of intimidation or threats, or acts, comments or displays. Offensive conduct can take many different forms, including the use of ethnic slurs or racist jokes, the demand for sexual favors, or the mimicking of an individual with a disability for the purposes of ridicule.
The behaviour was directed at the person being harassed.
The person being harassed was offended or harmed, including the feeling of being demeaned, belittled, personally humiliated or embarrassed, intimidated or threatened. In order for the offensive behavior to count as harassment, it must be unwelcome.
The harasser knew or reasonably ought to have known that such behaviour would cause offence or harm. If you find a particular behaviour offensive, humiliating or intimidating, then it is harassment, if you told the harasser that the behaviour was unwelcome and unacceptable. It doesn’t matter how the harasser or anyone else perceives the behaviour.
The behaviour occurred in the workplace or at any location or any event related to work, including while on travel status, at a conference where attendance is sponsored by the employer, at employer sponsored training activities/information sessions and at employer sponsored events, including social events.
There was a series of incidents or one severe incident which had a lasting impact on the individual. Note that in the case of sexual harassment particularly, a single incident may be viewed to be more significant in circumstances when your relationship at work is one where the employer has influence or power over you with regard to career advancement, performance review, day to day management of activities, work assignments and the carrying out of progressive disciplinary measures.
The series of incidents or one severe incident must be serious enough to affect your ability to work. The behavior must be proven to be severe enough that the behavior affected an individual’s work. This can mean either that explicit demands were made (sexual favors for promotion, for instance) or simply a feeling that your job could be affected (regular racist jokes that suggest a person of color is not welcome at work and may lose their job).
In order to make a finding of harassment, each of the above elements must be present. If even one of these elements cannot be proven, there will not likely be a finding of harassment.
In addition, if it is a claim of harassment and discrimination under the Human Rights Code, the series of incidents or one severe incident being complained about MUST be related to harassment and discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
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