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One day you may have to deal with an incident of sexual harassment at work – as a witness, a supervisor, or a victim. We have compiled a list of some of the most commonly asked questions below. Review the answers to feel better prepared!
The questions and answers listed below are meant to be used as general information about the law. They are not meant to comment on any individual’s specific situation, nor provide legal advice. For legal advice specific to a particular case or incident you or someone else has experienced, please consider speaking directly to a lawyer.
Despite this being a common saying amongst many service industries, the customer is not always right. If a customer is making you uncomfortable, you have the right to tell them that. The idea that a customer is always right can be very dangerous to share to employees, as it leads to employees being forced to stay quiet in situations that they are uncomfortable.
Employees have the right to not be subjected to sexual harassment in the workplace. If an employee is experiencing sexual harassment from a service user or customer, the employer has a duty to ensure that they address that risk.
Employers are legally obligated to prevent and address sexual harassment in the workplace from non-employees. They should take steps to make employees aware that sexual harassment by customers is unacceptable and to report any occurrences of sexual harassment immediately.
Facilitated Conversations –If parties involved in a sexual harassment complaint are uncomfortable meeting alone, an employer can ask a neutral third party (usually a member of management) to meet with the parties and help to facilitate a discussion.
Coaching– Sometimes, one or more people needs more guidance and direction. Coaching is a one-on-one process that encourages self-awareness and empowers parties to recognize the impact of their behaviour and actions on others and how others might perceive those behaviours and actions. An employer can direct one of their management members to act as a coach themselves, or they could consult outside agencies to assist in the coaching process.
Mediation – It can sometimes be helpful to have a neutral third party hear both sides of the situation and helps the parties reach a satisfactory decision about the issue at hand. The mediator creates an environment where the parties can try to reach a mutual agreement. Agreements may result in a letter of apology to the target of the harassment, human rights training for the organization/individuals involved, a change in the organization’s policies and procedures, etc. The mediator helps the parties decide what they believe would make the situation better going forward, and what they view as a good solution.
Group Process – A proactive approach that works to identify underlying issues and potential conduct within a group that if left unchecked could otherwise result in harassment. With a facilitator, the group or team identifies issues and conduct that are negatively affecting the group. The group clarifies roles and expectations within the group, and where they see the biggest risk. The group may set mutual goals and plans of action to ensure that harassment is eliminated in the workplace.
Telling a co-worker they look nice today, or complimenting a new article of clothing, is generally not considered sexual harassment unless they have asked you to stop. Compliments are inappropriate when they are accompanied with sexual innuendo or gestures, are focused on the other person’s body, or when they are unwelcome. It may also be inappropriate if you are constantly directing your compliments to one particular individual. If the individual you are complimenting has indicated you are making unwelcome comments about their appearance, it may be sexual harassment.
Generally, not offensive compliments:
Employers are legally obligated to have a workplace sexual harassment policy.
The policy must clearly lay out:
If you are made aware of sexual harassment happening in your workplace, as an employer you cannot turn a blind eye. You are legally obligated to address and prevent workplace sexual harassment.
If you have an HR department, that is a great place to start inquiring about what the standard for disciplinary action in your workplace. You may also wish to speak to a lawyer before enforcing any formal discipline to ensure you have grounds to do so.
The Employer Checklist and Response Guidelines for Workplace Harassment Complaints is a great resource you can use to help you understand your rights and obligations as an employer.
In some cases, sexual harassment can be a criminal offense.
Section 264 of the Criminal Code prohibits harassment commonly referred to as stalking. Anyone who follows someone from place to place or to their home may be found guilty of Criminal Harassment. The stalking must be done repeatedly, however, if the accused has engaged in conduct that made the victim fear for their safety or the safety of those around them then this may only need to occur once.
Section 265 of the Criminal Code prohibits sexual assault and attempts at sexual assault. Anyone who touches or attempts to touch someone in a sexual manner without consent may be found guilty of sexual assault.
Therefore, if the unwelcome sexual comments or gestures also involve the harasser touching you in a sexual manner or following you and making you feel unsafe you can consider reporting this to the police.
Generally speaking, if you are in a consensual relationship with someone from work, it is not against the law. A romantic relationship between two employees can remain relatively private unless it negatively impacts the workplace. It is usually best to advise your employer about the relationship to avoid a conflict of interest.
However, the dynamic becomes riskier if an employee in a position of power asks a subordinate employee on a date. Harassers are often in a position of power over the targeted person including structural/organization positions of power (manager/employee, instructor/student, tenured/new employees) and historical/societal norms relating to power (sex, gender expression, race, religion, sexual orientation etc.).
While consensual dating between a supervisor and subordinate may be allowed, it is important to consider the position you hold at your workplace and recognize the influence your power may have.
Employers have a legal obligation to take reasonable steps to both prevent and address workplace harassment. This includes harassment committed by non-employees.
These legal obligations come from:
What satisfies “reasonable steps” varies from case to case. A good start is to include a procedure for reporting sexual harassment by a non-employee in your workplace sexual harassment policy. It is also important to take complaints of sexual harassment seriously, it is not enough to have a complaint process and then take no further action to stop the non-employee from sexually harassing an employee. The employer should begin a thorough investigation after sexual harassment by a non-employee is reported and take action quickly.
Not necessarily, if a co-worker asks you on a date and you say no, this is unlikely to be sexual harassment on its own in the eyes of the law. But with sexual harassment, context matters. If the requests for dates continue after you have said no, this may be a form of sexual harassment. Once an individual is aware that their conduct is unwanted, they must stop this behavior immediately. If the request included unwelcome sexual comments or gestures these acts may also be sexual harassment.
Sexual harassment is defined as comments or gestures of a sexual nature that are unwelcome, that causes actual harm or harm that would be reasonably expected. Comments can range from mildly offensive to egregious sexual misconduct. Typically, comments or gestures on the lower end of the spectrum must occur multiple times to be sexual harassment. So, it is unlikely that a one-time event of a co-worker asking you on a date will be sexual harassment.
Sending a clear message of disinterest, or otherwise rejecting the date does not have to be rude, impolite, or unkind. Clear communication between employees and co-workers is important in ending the risk of sexual harassment occurring in the workplace.
This can depend on how and where you make your complaint. If you make a complaint internally with your employer, your workplace policy should give information about what you can expect. If it does not, ask your union representative, HR representative, or employer for information about their process.
Typically, an investigation should occur shortly after you report sexual harassment. Investigation often involves a thorough interview with all parties involved in the sexual harassment complaint.
When filing a formal complaint for sexual harassment with a Human Rights Commission, it is important to provide as much detail as possible. This includes names of witnesses, relevant documents, texts, or emails from your harasser.
The Human Rights Commission’s investigation process is thorough, and interviews can last 4-8 hours. The interviewer will ask detailed questions about the harassment such as:
You may also be required to provide evidence for a report such as:
Putting as much detail as possible when filing a complaint can help your complaint get processed faster.
If you file a sexual harassment complaint against someone or report the events to the police, the person accused will usually be notified when the complaint moves forward.
However, if your workplace does not have a sexual harassment policy you can contact WorkSafeNB anonymously to order your employer to create a sexual harassment policy. Worksafe will not disclose who contacted them about this. This is an informal process where you call WorkSafeNB directly and let them know where you work and that you have no harassment policy.
WorkSafeNB will then dispatch a health and safety officer immediately. The officer will go to the workplace and confirm that there is no policy and order the employer to create one immediately. Employers can access this template policy and complaint form provided by Safer Places NB to help them with this process. WorkSafeNB also has template policies and may offer your workplace assistance in creating one that fits the environment of the workplace. Once the officer has visited the workplace, WorkSafeNB follows up within 48 hours to ensure the policy has been established.
In most sexual harassment complaints, the complainant will have to be in some contact with the harasser. For example, if you sue someone you will have to face your harasser when you go to court.
The amount of contact with the harasser depends on how you decide to file a complaint.
Internal workplace complaint:
This depends on your employer’s workplace policy but may include discussions with the harasser through mediation or more informal meetings.
Human Rights Complaint:
If you file a complaint with the New Brunswick Human Rights Commission or Canadian Human Rights Commission, you will have some choice on how much contact you have with the other person. Human Rights Commissions will give all parties a chance to participate in mediation where both parties make a good faith attempt to reach an agreement and settle the complaint. Mediation is voluntary; both the complainant and respondent can decline to participate.
Complainants can also request that mediation be done via conciliation, which is mediation that happens remotely, so the parties never have to meet in the same room. During conciliation a mediator conveys messages between the parties via phone or email.
If your complaint is not resolved through settlement at the Human Rights Commission your case may be referred to a tribunal which adjudicates human rights complaints. If your case is referred to a tribunal you will likely have to be in a room with the person named in your complaint.
Criminal Action:
If you report a crime to the police and the crown decides to press charges, at a trial you would likely be called as a witness to describe what occurred and how you were impacted. You will have to describe these events with the accused in the room however you may be entitled to a variety of protections. These may include:
These protections must be provided to victims from certain vulnerable groups; however, other victims can ask the judge to permit them to use testimonial aids to help them feel safe while testifying. When you ask for a testimonial aid, the court must consider your security and protection as well as the requirements for a fair and open criminal justice process.
It is illegal for your employer to retaliate against an employee for filing a human rights complaint or reporting a crime. However, the Human Rights Commission cannot proactively stop an employer from retaliating against an employee. If your employer dismisses you because of a human rights complaint, you can file a separate complaint with the New Brunswick Human Rights Commission or Canadian Human Rights Commission. If your employer retaliates against you for reporting a crime, you can contact the police and may also want to seek advice from a lawyer.
Yes, you do not have to provide witnesses to support a claim of sexual harassment. Sexual harassment claims often come down to the credibility of the complainant and the accused. So, it is important to provide as much detail as possible in your complaint and provide any relevant dates, documents, emails and any other evidence that may support your claim.
Everyone in the workplace has the right to work without being sexually harassed. We can all be part of the positive conversation on how to prevent and address sexual harassment. This will help to create safer workplaces.
Discover the truth behind 12 common myths in the Workplace Sexual Harassment Myth Busters guide, and share it with your coworkers!
