Workplace sexual harassment is a very big deal. If ignored or addressed improperly, it can impact everything from worker productivity and a company’s bottom line to individual employees’ job satisfaction and self esteem. Its effects cascade down through entire teams, and those around them. Ultimately, it is an illegal form of discrimination. For these and many other reasons, addressing workplace sexual harassment is everyone’s business. In order to take meaningful action to address workplace sexual harassment it is essential to understand what it is. The purpose of this document is to facilitate meaningful action by clarifying what we mean by the term workplace sexual harassment.

Harassment occurs in many forms, and is always wrong. However, legal protections have limits, and the Yukon Human Rights Act (the Act) only offers protection against harassment that occurs based on certain protected characteristics (called grounds), and in certain protected situations (called areas). Workplace sexual harassment is prohibited by the Act because all aspects of employment (hiring, firing, treatment while employed, etc.) are a protected area, and sex (including pregnancy) and gender identity and expression are protected grounds.

The Definition

Under the Yukon Human Rights Act (the Act), harassment is defined as to:

“engage in a course of vexatious conduct or to make a demand or a sexual solicitation or advance that one knows or ought reasonably to know is unwelcome.”

Severe Act or Pattern of Actions

Let’s break that down a bit. The first important concept is the part about “a course of vexatious conduct”. In this case, vexatious means distressing or troubled. A course of behaviour means that the behaviour occurs more than once or is part of a pattern. A course of vexatious conduct simply means a pattern of distressing actions.

A single act may be considered sexual harassment if the act is severe enough. The more severe the act, the fewer times it must happen for it to be considered harassment. For example, a single act of sexual assault would almost certainly constitute sexual harassment but using a gender specific slur once may not.

A Demand, Solicitation or Advance

The second important concept is “to make a demand or a sexual solicitation or advance”. This generally refers to asking for something related to the sex, gender identity, or gender expression of the person being harassed. This may range from asking someone on a date to demands for sexual acts.

Sex and gender identity or expression are protected grounds under the Act.

Combining the first two parts of the definition, we find that a pattern of distressing actions or demands related to sex, gender identity, or gender expression is very likely to be sexual harassment. Some examples may include displaying sexualized images in a shared work bathroom, a supervisor who has authority over an employee’s performance review demanding a date. It could also include calling someone a derogatory name associated with their sex or gender, or refusing to call a co-worker by their preferred pronouns.

Unwelcome and Harmful

Conduct that “one knows or ought reasonably to know is unwelcome” is the last part of the definition. This part could be rephrased as “Would the conduct make a reasonable person feel uncomfortable, embarrassed or afraid?”. A person’s behaviour must meet the standard of an ordinary person; their intent does not matter. With workplace sexual harassment, what matters is the impact on the individual being harassed.

So, sexual harassment generally means repeated or extreme actions or demands related to their sex, gender identity, or gender expression which make another person feel uncomfortable, embarrassed, or afraid. Knowing this, it is easier to understand why sexual harassment almost always involves power dynamics and does not necessarily have to involve sexual attraction. For example, someone who consistently makes sexist jokes which undermine the confidence of a colleague may not be making the jokes because they are sexually attracted to the colleague. However, they are still sexually harassing their colleague by making them. Whether intentionally or not, these sorts of jokes often reinforce traditionally gendered work environments and may undermine the authority and self esteem of those who are their targets.

Another way in which power dynamics are often at play is the threat of retaliation. Retaliation, or the fear of retaliation, is a key piece of many workplace sexual harassment situations. Employees being harassed may not voice their discomfort with their boss’ actions because they fear they may lose their job or miss out on opportunities for advancement. They may also fear retaliation from their coworkers if they “snitch” or are a “killjoy”. Fear of retaliation and lack of confidence to deal with the allegations appropriately are two of the main reasons many victims do not report workplace sexual harassment.

Context Matters!

Context matters a lot when we are talking about sexual harassment. A colleague with equal standing in a workplace politely asking another on a date may be perfectly fine and not likely to make the other person uncomfortable, embarrassed, or afraid, but the same proposition from someone’s boss may be very uncomfortable if the person feels like they may face negative consequences if they say no.
Another way in which context matters is when we consider what is meant by the workplace. Some situations are obvious. Sexual harassment occurring in your office environment or on your work site is clearly occurring at work. However, the term workplace also includes situations in which someone is representing their employer, or where workplace power dynamics are at play. These could include situations like dinners with clients, travelling to a jobsite, or even parties. Co-workers continue to be co-workers outside of the physical work environment, and these relationships and power dynamics are the true foundation of what is meant by workplace.

Workplace Sexual Harassment is Everyone’s Business

There are a lot of myths and assumptions about workplace sexual harassment. Nothing in the definition of workplace sexual harassment says that harassers are male, and those harassed are female. Studies show that the majority of victims are female, but not all. Sexual harassment doesn’t have to contain any element of sexual attraction; harassment because a worker is pregnant or their gender expression is outside a workplace norm is still sexual harassment. Workplace sexual harassment can happen to anyone, and be perpetrated by anyone, but some are more likely to be victimized than others. Individuals with other protected characteristics such as a disability, members of racial minorities, and LGBTQ2S+ individuals are all at higher risk of being sexually harassed in the workplace.

Whether you are an employer, an employee, an advocate, or a contractor, understanding the legal definition of workplace sexual harassment is vital. Knowing the definition can allow you to better understand your workplace rights and responsibilities. It is also a vital first step to taking meaningful action against workplace sexual harassment to create more respectful workplaces in Yukon.

If you have any questions about workplace sexual harassment, please contact the Yukon Human Rights Commission. We are here to help!

The right to work in favourable and just conditions is a fundamental human right. This encompasses the right to a harassment free workplace where all employees are treated with respect by their employers, other employees and customers. When someone is sexually harassed in the workplace, it can undermine their sense of personal dignity, and prevent them from earning a living, doing their job effectively, or reaching their full potential.

To the extent possible, employers have a responsibility to make sure that every employee receives the respect they deserve and need. Employers have a legal duty to prevent and respond to sexual harassment in the workplace. Some ways to prevent sexual harassment include providing employees with adequate policies and training that addresses sexual harassment, and by creating a respectful workplace culture. In the event that a sexual harassment complaint is brought forward, the employer has a responsibility to respond to the complaint, listen to the employee, and deal with the complaint in a time-sensitive and confidential manner.

Employees owe the same respect and accountability to other employees. Employees must conduct themselves in a respectful manner in the workplace and at work related gatherings.

If appropriate and safe to do so, employees should raise their concerns about sexual harassment and seek assistance from a supervisor, manager or human resources person, or their union, and participate in the remedial process.

Employee Best Practices:

• Model respectful conduct in the workplace
• Become familiar with workplace sexual harassment policies
• Intervene and report when witnessing disrespectful conduct or harassment
• Seek the assistance or advice of human resources staff or union for constructive intervention regarding any incident of disrespectful conduct in the workplace
• Participate fully in any interventions and work collaboratively with the employer to resolve issues of workplace sexual harassment

Employees and the Yukon Human Rights Commission

If a complaint is brought to the Human Rights Commission, an employee has the following rights:

• A complaint can be filed without any judgement or embarrassment
• The identity of the parties will be kept confidential from the public. Only the parties and any witnesses may know about the complaint except if it goes to a hearing in front of a Board of Adjudication which is public
• A complainant can seek advice and help from anyone during the complaint process
• The complainant will be kept up to date about their complaint
• The complainant can ask to have the investigation stopped at any time

Click here to learn more about human rights complaints.

Organizations and institutions operating in Canada have a legal responsibility to ensure that their work environments respect human rights. This includes the duty to take steps to prevent and respond to sexual harassment. The advantages of preventing and addressing workplace sexual harassment include increased productivity and morale, and decreased absenteeism, legal expenses and liability.

Section 35 of the Yukon Human Rights Act provides that “Employers are responsible for the discriminatory conduct of their employees unless it is established that the employer did not consent to the conduct and took care to prevent the conduct or, after learning of the conduct, tried to rectify the situation.”

Even though harassers are responsible for their actions, in most cases the employer is also responsible for dealing with the situation in a prompt and proper manner. The responsibility to provide a safe and respectful work environment stems from the legal obligation of Yukon employers to address and take care to prevent discriminatory conduct in their workplaces (under Section 35 of the Yukon Human Rights Act) and to ensure their workplaces are safe and without risk to health (under the Yukon Occupational Health and Safety Act).

Responsibility and Accountability

In commenting on the employer liability provisions of the Act, the Supreme Court of Yukon has noted that “[t]he wording of s.35 of the Act creates liability for the employer unless the employer did not consent to the conduct and took steps to avoid it or rectified the conduct after learning of it.” The employer is responsible if they knew or should have known about the occurrence of sexual harassment in their workplace. In some situations, an employer can even be responsible for dealing with sexual harassment by someone who is not an employee. If the employer fails to deal with the situation properly, they may be held legally accountable by the employee who faced harassment.
The employer is liable for an employee who commits sexual harassment in the workplace because the employer is the only party that can eliminate the effects of discrimination by providing a healthy workplace.

Reasonable Response to a Complaint of Sexual Harassment

Under this obligation, on becoming aware of an event of sexual harassment, an employer should immediately investigate the situation in a confidential and discrete way, and take reasonable actions to resolve the problem. The Supreme Court of Canada has noted that “[an] employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability.

Policy

In assessing the reasonableness of the employer’s response to any complaint of harassment, consideration is given to “the existence and content of an anti-harassment policy and related investigative procedure.” Employers and other responsible parties should prevent sexual harassment by implementing clear sexual harassment policies that outline the rights, roles and responsibilities for the parties. Employers should put in place policies that clearly set out what constitutes sexual harassment and how sexual harassment will be dealt with, and these policies should be distributed throughout the organisation. Employers may also wish to establish user policies for social media and online channels that prohibit sexism and online sexual harassment including through company email systems.

Training

While many workplaces already have sexual harassment and violence prevention policies in place, staff are often not regularly trained on these policies. Policies tend to be most effective when regular training takes place during normal working hours.

Workplace Culture

A healthy workplace culture that does not tolerate harassment can only be ensured by setting standards and expectations of appropriate conduct throughout the organisation. A commitment to a diverse, inclusive and respectful workplace should be made and adequate resources dedicated to formulate policies, provide training and take serious steps to resolve complaints.

Employer Best Practices:

• Model respectful conduct in the workplace
• Establish and maintain policies to foster a respectful workplace and ensure that results are achieved in a manner that respects employees
• Ensure that all employees are made aware of the content, significance and implications of sexual harassment policies through training and education provided on a regular and recurring basis
• Ensure that those who are involved in managing workplace conflict and disrespectful conduct have the required competencies
• Ensure that concerns raised about conflict or harassment are addressed promptly and confidentially
• Respond appropriately to a sexual harassment complaint by
  • Taking the complaint seriously
  • Investigating what happened
  • Offering appropriate assistance to the affected employee
  • Taking appropriate remedial action
  • Ensuring there is no retaliation by the organization or the harasser for the complaint

Employers and the Yukon Human Rights Commission

If a human rights complaint is made against an employer, the Commission may consider the following employer responsibilities:

• What resources were made available to deal with a sexual harassment complaint?
• What procedures and policies are in place to deal with discrimination and harassment?
• Is the work environment toxic?
• Was appropriate action taken?
• How quickly did the employer respond to the complaint?
• How seriously was the complaint treated?

1 Hureau v. Yukon Human Rights Board of Adjudication, [2014] YKSC 21
2 Robichaud v. Canada, [1987] 2 SCR 84
3 Robichaud v. Canada, [1987] 2 SCR 84 at para 19
4 Payette v. Alarm Guard Security Service [2011] OHRTD No 109

From the beginning of the 20th century to today, there has been a change in the way sexual harassment in the workplace is regarded. It is now viewed as unacceptable, intolerable behaviour that violates international, national, provincial and territorial human rights legislation. Unfortunately, sexual harassment still persists, despite its established illegality and all the work that has been done to eliminate it from society. In Canada workplace sexual harassment is perceived to be deep rooted and cuts across all occupational categories and institutions.

In North America, the workplace had long been imagined as a male domain with the idealized notion that a man is the breadwinner and a woman the homemaker. Then in the early 20th century, an increasing number of women joined the workforce. Many women who entered the labour force were single women, most of whom were conflicted about joining the workforce. The conflict was not simply about going against the prominent attitude regarding a woman’s place in society but about the choice between deprivation if unemployed, and sexual harassment or even sexual assault on the job. For women, sexual harassment was a condition of work along with low wages, long hours, and unsafe work environments.

With the instilled belief that women belonged in the home, women who entered the workplace were considered as leaving behind their integrity and natural standing. Some postulate that this idea of working women allowed men a greater degree of permissibility to sexually harass them as an indirect way of enforcing the status quo and preserving male dominance in the workplace.

In the course of WWI, many women took the place of male workers who joined the armed services; however, the demand for workers was not great enough to necessitate extensive employment of women. As the war concluded, single women were pressured to leave the work force and married women were legislated out.

Although the early 20th century women’s movement centered on the fight for legal and political equality, women workers invariably, albeit peripherally, fought for better working conditions alongside the trade-union movement, although not always with their support. It’s important to note that the majority of women in Canada joined forces with people similar to them. In particular, the middle-class women of European origin had distinct opportunities to organize and most activists attended to the reform of societies dominated by Canada’s White, urban, heterosexual, male middle class. This monopolized perspective on women’s rights undercut many intersectional, social and political identities and voices.

As the Great Depression subsided and WWII brought enormous increase in production and employment, there was a proliferation of women hired back into the workforce. Even though many women were once again encouraged to leave the workforce after WWII by withdrawing incentives such as government nurseries, many stayed in the labour force.

Internationally, three years after WWII ended, the cornerstone Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly. The 1948 declaration advanced a bold new course for human rights by presenting a vision of freedom across all aspects of life. Although the protection against workplace sexual harassment was far from being individually recognized, Article 23 of UDHR states “everyone has the right to […] favourable conditions of work …”.

In Canada, with the rapid economic expansion in the 1950s, fair accommodation and fair employment practices laws were enacted. These were important but small steps towards workplace equality. In 1970 the federal Royal Commission of the Status of Women wrote a ground breaking report which identified the multitude of laws and policies that discriminated against women. The work of the Royal Commission of the Status of Women energized the women’s movement of that time. In the 1960s and 1970s, the women’s movement still demanded action on a number of labour-related issues, including but not limited to the protection against sexual harassment in the workplace. At the same time that these women’s groups gained momentum in their movement towards equality and anti-discrimination, Canadian provinces and territories started developing comprehensive human rights codes.

When the Canadian Parliament passed the Canadian Human Rights Act in 1977, sexual harassment was not recognized as a form of discrimination. The examination of whether sexual harassment could be considered within the scope of discrimination on the basis of sex formally occurred in 1980. Previously, the Canadian Human Rights Commission did not accept complaints of sexual harassment (Aggarwal, 1987) as their view of sex discrimination was limited in scope. It wasn’t until 1983 that sexual harassment was classified within the definition of sexual discrimination, which was confirmed in 1989 by the Supreme Court of Canada.

Today, Yukon, with its Human Right’s Commission established in 1987, is one of the seven jurisdictions that specifically prohibits sexual harassment (for the Yukon Human Rights Act’s definition of sexual harassment, click here). Under the Act’s definition, sexual harassment is not a form of discrimination that applies solely to harassment on the basis of sex. Sexual harassment on the basis of sexual orientation, gender identity or expression is also prohibited. As explained by the Supreme Court of Canada, sexual harassment in the workplace is “practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender” (Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252). Even though for years caselaw considered gender identity and expression to be within the scope of sexual orientation, gender identity or expression was not a standalone characteristic protected by the Yukon Human Rights Act until 2017.

In the second decade of the 21st century, social media movements have brought into public awareness that work still needs to be done on the issue of workplace equality. These movements exist in response to ongoing issues and build upon other movements discussed in earlier paragraphs. In Canada, almost 20 percent of women and 13 percent of men report harassment in the workplace. Over the years, the Yukon Human Rights Commission has received and continues to receive complaints of workplace sexual harassment that go to adjudication or are otherwise settled. With this awareness and the recent critical momentum in our society to change the culture on sexual harassment, the revelation of just how deeply sexual harassment is ingrained in workplaces has raised the urgency to address this continuing issue.

International human rights conventions and Canadian legal decisions recognize that harassment is ultimately an abuse of power which serve to reinforce traditional gender roles. Taking action on workplace sexual harassment is one area that must be addressed if we are to end employment disparities and gender discrimination in the workplace.

The Yukon Human Rights Commission’s recent initiative, A Yukon Without Workplace Sexual Harassment, with support from the federal government, aims to raise awareness, improve knowledge, skills and capacity for Yukoners to address and take action on sexual harassment in the workplace. Through this project the Commission builds on the positive changes in Canadian workplace culture since the late 18th century and will continue to work towards eradicating sexual harassment in Yukon.