Sexual Harrassment in the Workplace

While numerous things can be considered sexual harassment, some things will not fall under the definition, such as:

• The legitimate and proper exercise of management authority and/or responsibilities in the workplace
• Legitimate and constructive feedback surrounding work performances
• Disciplining staff in accordance with the employers right to manage
• The employer/manager’s right to assign work tasks
• Good-natured consensual flirting, teasing, and/or jesting that BOTH parties are comfortable with and find acceptable, and that does not make other people uncomfortable
• Office relationships that BOTH parties are comfortable with and willingly consenting to:
• being mindful of power imbalances. Even if both parties agree, there may be complicated issues to consider when it is a boss/supervisor and employee.
• being mindful of company/internal policies which may prohibit inter-office relationships or require disclosure of such relationships.

In Newfoundland and Labrador, the Human Rights Act prevents people in positions who are able to confer, grant, or deny benefits or advancements to individuals from engaging in sexual solicitation or from making sexual advances to someone where they know or reasonably should know that it is unwelcome

Furthermore, people in positions to confer or deny benefits or advancements to others cannot penalize, punish, or threaten to retaliate against the person for rejecting their sexual advances.

In other words, a person who has power and authority in a workplace, including a boss, manager, or supervisor, cannot make unwanted sexual advances towards people in their workplace and cannot give or deny employment benefits (such as a raise, a promotion, or other benefit) based on sexual solicitation or sexual advances. As well, an employee cannot be punished or denied employment benefits for rejecting the sexual advances of another person in their workplace.

The law says that every employee, regardless of their place of employment, position, length of employment, seniority, or any other factor, has the right to a harassment-free workplace.

The NL Human Rights Act protects people from discrimination and harassment. The Act recognizes the inherent dignity and worth of all people, that we all have equal rights and opportunities, and should all live free from discrimination and harassment. Under the Act, an employer cannot refuse to employ (or to continue to employ) or otherwise discriminate against a person with regard to a protected ground.

You have the right not to be discriminated against or harassed based on your race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, gender identity, gender expression, marital status, family status, source of income, or political opinion.

Under the NL Occupational Health and Safety Act, all employers must ensure the health, safety, and welfare of their workers, and more specifically:

• provide and maintain a workplace and the necessary equipment, systems, and tools that are safe

and without risk to the health of his or her workers;

• provide the information, instruction, training and supervision and facilities that are necessary to ensure the health, safety, and welfare of his or her workers;
• shall ensure that his or her workers, and particularly his or her supervisors, are made familiar with health or safety hazards that may be met by them in the workplace;

• shall ensure that his or her workers are given operating instruction in the use of devices and equipment provided for their protection.

Recent changes to the OHS Regulations include:

• An expansion of areas of misconduct covered, including:
• Worker on worker violence – the definition of violence has been expanded to include ‘worker on worker violence’
• Workplace harassment – definition added. ‘Inappropriate vexatious conduct or comment by a person to a worker that the person knew or ought to have known would cause the worker to be humiliated, offended, or intimidated.
• Family violence – employers must take precautions to protect workers where they become aware (or ought reasonably to have been aware) of the risk of family violence in the workplace.
• Risk assessments must now include ‘workplace characteristics including demographics, culture and the presence of new workers’ and ‘issues raised by the workplace health and safety committee, representative or designate’, along with the previously existing factors (which include previous experience in the workplace, occupational experience in similar workplaces, and the location and circumstances in which work may take place).
• A shift from reactive responses to workplace violence and harassment towards more proactive harassment prevention, including:

• • Harassment prevention plan – the plan must set out procedures for reporting, investigation, and what should happen after an investigation. This plan must be made available to all workers.
  • Training – employers must offer training to staff on the plan itself, and on harassment prevention more broadly.
  • Annual review – the plan must be reviewed and updated as needed, but at least annually.
• It is now clearly stated that investigations of complaints are required. These investigations may be completed by current staff or by an external third-party where necessary (for example, if the supervisor is the person accused of harassment).
• Privacy protection is more explicit. Employers must protect employees’ privacy by keeping personal information obtained during an investigation confidential, and stating in the harassment prevention plan that personal information will not be disclosed except where necessary for the investigation and/or required by law.

All employees have the right to a safe workplace free from harassment and discrimination. Under the Occupational Health and Safety Act, your employer must ensure your health, safety, and welfare. Under the Human Rights Act, your employer cannot refuse to employ (or to continue to employ) or otherwise discriminate against you with regard to a protected ground. In NL, sex, sexual orientation, gender identity and gender expression are all protected grounds, along with 14 others.

Under the OHS Act, you have the ‘right to refuse’; that is, you can refuse to do work which you have grounds to believe is dangerous to your health or safety or to the health or safety of somebody else.

Employees may be the first ones to notice sexual harassment in the workplace, long before management learns of any problems. Employees can act as a means of notifying appropriate authorities about sexual harassment in the workplace to help prevent further unwanted and unwelcomed behaviours if they have the consent of the person experiencing the harassment. It is important to ensure that the person experiencing the harassment is in control of what steps are taken.

Some things employees can do to help prevent sexual harassment include, but are not limited to:

• Learning the workplace sexual harassment policies
• Observing the workplace to see if sexual harassment is happening
• Becoming aware of the various forms of sexual harassment
• Discourage behaviours and actions that may offend someone
• Asking whether behaviours and actions may offend someone, even if they may not offend themselves
• Confronting sexual harassment behaviours immediately when observed when safe to do so
• Notifying management or supervisors that someone may have been, or is maybe being sexually harassed
• Writing an anonymous letter to a supervisor or manager about possible sexual harassment
• Providing support to victims who have been sexually harassed. This can help further educate on what constitutes unwanted and unwelcomed behaviours and actions

Here are some steps you can take if you have experienced sexual harassment in the workplace:

Speak to management about the issue

Speak to a Human Resources person (if your workplace has one) or your direct supervisor or manager. If this feels intimidating, you might try first speaking to a trusted co-worker. You might consider asking this co-worker to be with you as a support person when you bring your concerns to management.

Speak to your union representative (if applicable)

If you work in a unionized environment, you should contact your union representative. Your Collective Agreement likely includes provision regarding workplace harassment and discrimination.

Your union representative can give you guidance on what to do next. An informal resolution may be possible through a conversation between you, your employer, and your union representative. If not, your representative can guide you through the grievance process.

There is no one-size-fits all process for how a union will respond to complaints of this nature, so be sure to ask your union representative lots of questions so that you can fully understand what happens next. You may wish to ask about timeline (i.e., how long it might take to investigate and resolve your complaint). You may also wish to discuss expectations about privacy (i.e., best practices to ensure that your complaint is handled with discretion, so that not everyone in the workplace hears about what has occurred).

Find out if your employer has a current anti-harassment policy in place

Ask to see your employer’s policy on workplace sexual harassment. Employers should have a written policy regarding sexual harassment and other forms of discrimination. This policy will give you an idea of how your employer handles sexual harassment complaints and what the next steps will be in addressing the issue.

If your employer does not have a sexual harassment policy (and if you feel comfortable doing so), you can direct them to the free online training on sexual harassment for employers developed by us.

We have developed training for employers and employees on sexual harassment in the workplace. Employers can learn about best practices to prevent and address sexual harassment in the workplace, including guidance on the development of sexual harassment policies and procedures. Employees can learn information on their rights and responsibilities at work and steps to take if they experience or witness sexual harassment in the workplace.

Document your experience

If you have experienced sexual harassment in the workplace, you should create a paper trail. For example, if you have received sexual messages or images from a co-worker, save these and put them somewhere for safekeeping. You can also make a note of the date of the harassment and other details such as who was present and where the harassment occurred.

It may seem counterintuitive to think about keeping documentation or images that are potentially upsetting and triggering. You may be inclined to delete a message or image of this nature. But it is important to hold onto this information. You may need to rely on it at a later date if there is an internal investigation or if you file a complaint with an external agency (such as a human rights complaint or police report).

If you request a meeting with a manager to address your concerns, you may wish to do so in writing. It is also useful to send a follow up email after meeting with a superior in order to make a note of what you’ve discussed. This creates helpful documentation of the fact that you have taken steps to address the problem with management. This documentation may come in handy if your employer does not then take appropriate steps to stop the sexual harassment.