Sexual Harassment in the Canadian Workplace

Sexual harassment continues to be a problem in the workplace. Years ago not much was done to stop sexual harassment in the workplace, it was an issue that was largely ignored, however now there are policies and legislation that address the problem. What follows is a brief look at the statistics, issues around reporting, and the effect of sexual harassment, then there is an examination of both federal and Alberta provincial legislation that pertains to sexual harassment, as well as an analysis of the effectiveness of this legislation. This is followed by a discussion of the work of The Standing Committee on the Status of Women and the committee’s recommendations and strategies for improvement.

Statistics, Reporting, and Effects of Sexual Harassment

A 1993 survey by Statistics Canada shows that many women (23%) have experienced sexual harassment on the job. The three most commonly repeated types of sexual harassment are: inappropriate comments, being too close in proximity, and pestering them to go out on a date. As females are most often employed in jobs where their superiors are men, “the structural conditions of women’s work create an environment conducive to sexual harassment” (Wilson, 1996, p. 127).

Often sexual harassment is not reported because women feel it was not significant enough to be investigated (Welsh, 2000, p. 121). They also “do not report the harassment due to fear that they may not be believed, that they may experience retaliation, or that they may lose their jobs (Cochran et al. cited in Welsh, 2000, p. 121). Welsh theorizes that if more women were filing, as well as talking about complaints, then there would be more comfortableness in reporting (p. 121). The same author also notes that “feminist critiques of sexual harassment law point out how tribunals, judges, and other legal decision makers” (p. 123) “analyze separate incidents of harassment in isolation so that an overall pattern of persecution becomes invisible” (Faraday cited in Welsh, 2000, p. 123). For most women it is not a single incident, but rather a series of incidents that constitute sexual harassment (p. 16). Some courts have been known to call sexual harassment an “individual misunderstanding” (p. 124).

The effects of sexual harassment can include “job dissatisfaction and absenteeism” (Fitzgerald et al., 1997; Kauppinen-Toropainen and Gruber, 1993; Schneider, Swan and Fitzgerald, 1997) as well as “nervousness, anger and irritability” (Loy and Stewart, 1984), “low self-esteem and elevated stress” (Kauppinen-Toropainen and Gruber, 1993) (all cited in Crocker & Kalemba, 1999, p. 543). Employees are more severely affected when the sexual harassment is from a superior, most likely because that person has the most power to effect their work environment (p. 543).

Legislation

The governing acts and codes in Canada are very confusing. There are five documents that I looked at: 1) Canadian Human Rights Act, 2) Alberta Human Rights Act, 3) Canada Labour Code, 4) The Alberta Occupational Health and Safety Code, and 5) Preventing Violence and Harassment at the Workplace. What further adds to the confusion is the varying ways sexual harassment is defined in these documents. As well, the very document that would seem to be the most pertinent, Preventing Violence and Harassment at the Workplace, actually makes a point of stating that the document does not cover sexual harassment.

Canadian Human Rights Act

Aggarwal (1991) states that “the Supreme Court of Canada in Robichaud v. R. determined that the Canadian Human Rights Act imposes a statutory duty on employers to provide a safe and healthy work environment” therefore “sexual harassment by a supervisor would automatically be imputed to the employer when such harassment results in a tangible job-related disadvantage to the employee” (p. 4-5).  The same author also notes that employers are responsible for the actions of their employees and supervisors if they are discriminatory which would include sexual harassment (p. 5). While the Canadian Human Rights Act has a provision for sexual harassment it does not define what sexual harassment is, rather it is “deemed to be harassment on a prohibited ground of discrimination” (Government of Canada, 2014, p. 5). In other words it is grouped in with the other discriminatory practices defined in the Canadian Human Rights Act, and is not considered a possible act of violence.

Alberta Human Rights Act

Similar to the Canadian Human Rights Act, the Alberta Human Rights Act also identifies sexual harassment as a “discrimination based on gender” (Alberta Human Rights Commission, 2012, p. 1). However, the Alberta Human Rights Act goes a step further and defines what sexual harassment is, as well as what may constitute sexual harassment such as “suggestive remarks, sexual jokes or compromising invitations; verbal abuse; visual display of suggestive images; leering or whistling; patting, rubbing or other unwanted physical contact; outright demands for sexual favours; and physical assault” (p. 1). It also sets out who is legally responsible, the employer responsibilities, the need for policy development within organizations, and what to do about sexual harassment (p. 2). If a complaint is not handled satisfactorily by the employer a complaint can be made to the Alberta Human Rights Commission; however, a “complaint must be made within one year of the alleged incident or the Commission does not have the authority to accept the complaint” (p. 2).

Canada Labour Code

Another governing document for any “work, undertaking or business that is within the legislative authority of Parliament” is the Canada Labour Code (Government of Canada, 2015, p. 1). Wilson (1996) states that it “requires employers to issue policy statements regarding sexual harassment, explaining the law, and outlining the compliant mechanism” (p. 127). The Canada Labour Code defines sexual harassment as “any conduct, comment, gesture or contact of a sexual nature (a) that is likely to cause offence or humiliation to any employee; or (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion” (Government of Canada, 2015, p. 210). As well, the Canada Labour Code says that employers must have “a statement explaining how complaints of sexual harassment may be brought to the attention of the employer” (p. 210). The corresponding provincial labour code for Alberta only gives discussion of grounds of discrimination with no mention of sexual harassment.

Alberta Occupational Health and Safety Code

The Alberta Occupational Health and Safety Code (2009) does not mention sexual harassment or even harassment. It only makes provisions for violence in workplace, and defines violence as “the threatened, attempted or actual conduct of a person that causes or is likely to cause physical injury” (p. 1-26).  The Occupational Health and Safety Code puts the onus on employers who “must develop a policy and procedures respecting potential workplace violence” (p. 27-1). Note that the words ‘physical injury’ do not correspond with the ‘physical assault’ wording that the Alberta Human Rights Act uses to describe sexual harassment. An ‘injury’ would imply something that happened by accident, whereas an ‘assault’ would imply an unwanted violent act.

Preventing Violence and Harassment at the Workplace

The Government of Alberta publishes a sixty-two page Workplace Health and Safety Bulletin on Preventing Violence and Harassment at the Workplace. Interestingly, this document clearly states: ““Personal” harassment, which is the subject of this Safety Bulletin, differs from “sexual” harassment” (Work Safe Alberta, 2006, p. 5). Given that the title of document has both the words ‘violence’ and ‘harassment’ in it, it seems rather odd that sexual harassment would be excluded from such a manuscript. While this workplace safety document is clear about the duties of employers regarding violence and harassment in the workplace, a person who has been sexually harassed would be hard pressed to figure out whether this document even applied to them. Preventing Violence and Harassment at the Workplace goes on to say: “How an employer categorizes abuse for the purpose of risk identification should be drawn from its policy definition of violence and harassment and may be influenced by the type of work performed” (p. 9). The employer’s policy would have to include statements that define sexual harassment as a type of abuse in order for it to be considered as an act of violence in the employee’s workplace.

Analysis

Given the above documents there seems to a bit of a confusion where sexual harassment is concerned. On the one hand it is considered by the Canadian Human Rights Act to be discriminatory, while on the other hand the Alberta Human Rights Act classifies it as including “physical contact” and “physical assault” (Alberta Human Rights Commission, 2012, p. 1), and yet the guidelines set out by Work Safe Alberta in Preventing Violence and Harassment at the Workplace clearly state that their document does not include sexual harassment which seems to conflict with it potentially being a “physical assault” as defined by the Alberta Human Rights Commission (p. 1). Preventing Violence and Harassment at the Workplace is dismissive of the multiple grounds of sexual harassment that employees may encounter.

Part of the difficulty in defining sexual harassment is that what one person considers sexual harassment may differ from another person’s experience of it. (Martin, 1995, p. 217). As well, the nature of sexual harassment can include anything from leers and wolf whistles, to actual rape. While it is hard to perceive a wolf whistle as being a violent act, it is much easier to see rape as a violent act. It gets even more convoluted when considering whether a ‘threat’ of rape would be considered an act of violence. Giuffre & Williams (1994) state that “how people currently identify sexual harassment singles out only a narrow range of interactions, thus disguising and ignoring a good deal of sexual domination and exploitation that take place at work” (p. 397).

The Standing Committee on the Status of Women

In 2014 The Standing Committee on the Status of Women completed the report A Study on Sexual Harassment in the Federal Workplace. This is a federal government initiative that recommended that “the Committee conduct a study of sexual harassment in workplaces in the federal jurisdiction; the impact and cost of sexual harassment; whether the current complaint/reporting channels of federal organizations are effective in addressing sexual harassment; whether current policies – Treasury Board and organization specific policies – should be amended or improved” (Standing Committee on the Status of Women, 2014, p. 1). While the committee was studying only those workplaces under federal jurisdiction, it is significant that the Canadian government is keeping the topic of sexual harassment at the forefront as this is a very recent report, as well as conducting studies as to whether the desired outcomes are being met by those who do report sexual harassment. There is likely to be a trickle down effect from any new findings or changes by this committee to organizations outside of the federal government.

One of the recommendations from the Standing Committee on the Status of Women (2014) is that “employers, managers and co-workers must be prepared to challenge social norms that govern workplace behaviours that can discount the seriousness or reinforce sexually harassing conduct” (p. 107). Another recommendation is increasing bystander intervention as many do not report the incidences (p. 110). As there is no collective body that keeps statistics on sexual harassment it is suggested that a database be implemented (p. 138). Exit interviews should include specifically inquire as to whether the employee experienced sexual harassment (p. 138).

Conclusion

Although sexual harassment legislation and policies have improved considerably over the years, there is still work to be done. As there is both federal and provincial legislation covering sexual harassment it is confusing to sort through it all. While larger companies have human resource personnel skilled to understand these documents and the necessity of creating policies, it is likely smaller companies neither have the personnel or the time to wade through them all to effectively set up a sexual harassment policy.

I would posit that it is likely that many companies do not have policies in place for sexual harassment even though it is a legal requirement. I also doubt that companies that do not have a designated staffed human resource department have the either the knowledge of the laws, or the personnel available to draft policies. I suspect there are many women who encounter sexual harassment in the workplace who are not aware of their rights in reporting, and the company they work for hasn’t made it a priority to inform them, either through ignorance or avoidance.

Legislation needs to be streamlined so there are not so many documents providing varying definitions and classifications of sexual harassment. Sexual harassment encompasses more than just discrimination, it is also harassment as well as crossing the lines into violence when any physical touching occurs, yet none of the documentation considers all of these factors at once.

As well, even if an employer were to take an action such a dismissing an employee for sexual harassment, that employee may just go to another company and start doing the same thing all over again. It is just passing the problem on to someone else. What still needs to happen is a major change in cultural attitudes where sexual harassment does not occur in the first place.

References

Aggarwal, A. P. (1991). Arbitral Review of Sexual Harassment in the Canadian Workplace. Arbitration Journal46(1), 4-16.

Alberta Human Rights Commission. (2012). Sexual harassment information sheet. Government of Alberta. Retrieved from http://www.albertahumanrights.ab.ca/SexualHarass.pdf

Crocker, D., & Kalemba, V. (1999). The Incidence and Impact of Women’s Experiences of Sexual Harassment in Canadian Workplaces. Canadian Review Of Sociology & Anthropology36(4), 541-558.

Giuffre, P., & Williams, C. (1994). Boundary lines: Labeling sexual harassment in restaurants. Gender & Society, 8(4), 378-401.

Government of Canada. (2014). Canadian human rights act. Justice Laws Website. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/h-6/FullText.html

Government of Canada. (2015). Canada Labour Code (R.S.C., 1985, c. L-2). Justice Laws Website. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/l-2/

Martin, S. (1995). Sexual harassment: The link between gender, stratification, sexuality, and women’s economic status. In E. Nelson & B. Robinson (Eds.), Gender in the 1990s: Images realities and issues (pp. 216-228). Scarborough: Nelson Canada.

Occupational Health and Safety Act. (2009). Occupational health and safety code 2009. Government of Alberta. Retrieved from http://work.alberta.ca/documents/WHS-LEG_ohsc_2009.pdf

Standing Committee on the Status of Women. (2014). A Study on Sexual Harassment in the Federal Workplace. Ottawa, Canada: Canada. Parliament. House of Commons.

Welsh, S. (2000). The Multidimensional Nature of Sexual Harassment. Violence Against Women6(2), 118-141.

Wilson, S. (1996). Women, families & work (4th ed.). Toronto: McGraw-Hill Ryerson Limited.

Work Safe Alberta. (2006). Workplace health and safety bulletin: Preventing violence and harassment at the workplace. Government of Alberta.