In Janzen v. Platy Enterprises, [1989] 1 SCR 1252, the Supreme Court of Canada has ruled unanimously that sexual harassment is discrimination based on sex. Sexual harassment may include unsolicited sexual jokes, or unwanted touching and repetitive gestures of affection, physical assault, including attempted and actual rape. Sexual harassment includes cyber harassment as well.

Both women and men may experience sexual harassment in the workplace. The reference to comment or behavior that is known or ought reasonably to be known to be unwelcome and unwanted establishes a subjective and objective test for harassment. The subjective part is the harasser’s own knowledge of how his or her behavior is being perceived. The objective component considers how such behavior would generally be perceived by a reasonable person similarly situated.

Sexual harassment is not limited to person-to-person contacts, but also includes cyber harassment. Email, blogs, Facebook, cell phone text messaging, Whatsapp, etc. are all possible domains for sexual harassment. Both the Human Rights Code and the Occupational Health and Safety Act prohibits any form of sexual harassment. An Employer has a responsibility and an affirmative duty to maintain a harassment-free healthy working environment not only in the physical premise and the work space but also in the cyber space controlled by the Employer.

Human Rights Code (the Code) and Sexual Harassment

It is not required to prove that the harasser in the case of sexual harassment that such harassment was sex based or that he or she is discriminatory towards women in general. As mentioned above, the Supreme Court has already equated sexual harassment to sex based discrimination. In other words, a sexual harassment is by definition a violation of the Human Rights Code.

The Human Rights Code has an entire section that’s dedicated to Sexual harassment as it’s one of the most serious type of human rights violation that deserves the MOST serious and severe punishment. It’s a heinous crime by definition.

Section 7 (2) of the Code states that every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.  

Section 7 (3) of the Code states that every person has a right to be free from:

  1. a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

  2. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. 

Section 8 and 9 of the Code states that every person has a right to claim and enforce his or her rights, to institute and participate in proceedings and to refuse to infringe a right of another person, without reprisal or threat of reprisal for so doing, and that no person shall infringe or do, directly or indirectly, anything that infringes a right.

Canada has a zero tolerate to sexual harassment. If you have been a victim of sexual harassment, DON’T take it for granted. Open up and let people assist you. Complain to the management about the sexual harassment, and they have a duty to investigate into the complaint, and take appropriate corrective measure to accommodate and to make sure it never happens again. And if the management fails to act on it, file a complaint to the HRTO. If you are being terminated in retaliation after filing a complaint to the management or after you file a complaint to the HRTO, you have a right to sue for wrongful dismissal or to file a complaint for a reprisal against by employer.

 

Click here to learn more about sexual harassment.

Click here to learn more about wrongful dismissal.

Click here to learn more about where to file a claim of wrongful dismissal, a case of harassment, and a case of termination in retaliation by employer.

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