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Harassment, what is it?

Sexual harassment

“Sexual harassment in the workplace includes all forms of un wanted attention or advances with a sexual connotation which cause discomfort and fear, and threaten our well-being and/or our employment. “ - GAIHST

⇒ For more information about sexual harassment

What the law says

Act Respecting Labour Standards

The definition of psychological harassment in the Act Respecting Labour Standards includes behaviour of a sexual nature.

_{Act Respecting Labour Standards, CQLR, c. N-1.1, Art. 81.18.}

Charter of Human Rights and Freedoms

Sexual harassment undermines a person’s rights, specifically their fundamental rights such as: the right to safeguard their dignity, the right to privacy, as well as the right to integrity.

_{Charter of Human Rights and Freedoms, CQLR, c. C-12}

Canadian Human Rights Act

Sexual harassment in the workplace constitutes an infringement of equality, because it is based on sex, one of the prohibited grounds of discrimination, pursuant to the Canadian Human Rights Act.

_{Canadian Human Rights Act, R.S.C. 1985, c. H-6}

Canada Labour Code

Any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.

_{Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act, and the Budget Implementation Act, 2017, No. 1. S.C.2018, ch. 22}

Forms and examples

Sexual harassment in the workplace can take many forms, either verbal, non-verbal or physical manifestations.

Non-verbal sexual harassment

Here are some examples:

_{• Looks that make you feel uncomfortable: One of your customers regularly undresses you with their eyes each time they visit and that makes you feel uncomfortable.}

_{• Whistling: Your colleague systematically whistles every time you arrive at the office and you find that insulting.}

_{• Special attention: Even though you have already mentioned to your colleagues that you do not wish to receive presents from them, they continue to give them to you.}

_{• Emails, text messages, letters or any other writing with a sexual connotation or which is a type of “advance”: Nearly every evening, you receive compliments from a colleague on social media.}

_{• Explicit signs with a sexual connotation: During an early evening event, a member of the board of directors imitated a sexual act behind one of your colleagues and that made you feel very uncomfortable.}

_{• Displaying erotic or pornographic material: At lunchtime, your colleague who you share the same office with looks at erotic photos.}

_{• Voyeurism: During a team-building activity outside the office, you surprised one of the interns in your company who was looking into the changing rooms.}

_{• Exhibiting genital organs: During a weekly meeting, your colleague turns on their camera and exposes their genitals.}

Verbal sexual harassment

Here are some examples:

_{• Rude, sexist or degrading “jokes”: During a celebration for the holiday season, your colleague did not stop from telling jokes with a sexual connotation to the person in charge of the restaurant service and that has made you feel very uncomfortable.}

_{• Comments on physical appearance: Your supervisor regularly tells you how much your clothes enhance your figure.}

_{• Indiscreet questions: An intern in your company asks you questions about your love life non-stop.}

_{• Intimate confidences: Since your colleague has a new partner, s/he does not stop from talking to you about their sexual exploits.}

_{• “Affectionate” nicknames: Every morning, the person in charge of cleaning the building where you work calls you “my love” when s/he greets you.}

_{• Repeated invitations of any kind: Every week, one of your colleagues invites you to accompany them to the cinema, despite you declining numerous times previously.}

_{• Comments or insinuations with a sexual connotation: When you arrive at the office out of breath after having gone jogging, your colleague makes insinuations with a sexual connotation in front of everyone.}

_{• “Give-and-take” blackmail: The director of your company offers you a promotion in exchange for a sexual relationship.}

_{• Threats: A person in management threatens you with dismissal if you do not give in to their sexual advances.}

Physical sexual harassment

Here are some examples:

_{• Rubbing against a person: Your manager stands very close to you and rubs their shoulder against yours each time they check your work on the computer.}

_{• Physical contact: Your director massages your shoulders when you are at your workstation.}

_{• Other violations of a sexual nature: You are the victim of sexual aggression by one of your colleagues during a business trip.}

Consent

Consent (or agreement) given by a person to gestures, words, conduct or acts of a sexual nature must be explicit, clear and precise.

There is no one way to signify to the person doing the harassing that their behaviour is unwanted. In order to avoid being subject to reprisals or if they are scared, the victim may in some cases use silence and passive tolerance, which does not equate to consent.

What is not considered to be sexual harassment?

Sexual harassment differs from amicable flirting, a romantic relationship and camaraderie, which are voluntary connections between two consenting people.

_{e.g.: it is possible that two colleagues become friends, give each other affectionate nicknames, go out together outside of work, etc. It is also possible for romantic relationships to develop in a work environment. In these cases, we are not dealing with situations of sexual harassment because they do not involve conduct which is hostile or unwanted.}

Psychological harassment

Psychological harassment in the workplace is a form of violence and an abuse of power.

⇒ For more information on psychological harassment

What the law says

Act Respecting Labour Standards

“For the purposes of this Act, ‘psychological harassment’ means any vexatious behaviour in the form of conduct, verbal comments, actions or gestures, which are repeated, hostile or unwanted, that affect an employee’s dignity or psychological or physical integrity that, for the employee, results in a harmful work environment.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.

For greater certainty, psychological harassment includes such behaviour in the form of verbal comments, actions or gestures of a sexual nature. “

_{Act Respecting Labour Standards, CQLR, c. N-1.1, Art. 81.18}

The 5 criteria of psychological harassment

Vexatious behaviour

Conduct, words, acts or gestures which are humiliating, offensive, degrading or abusive. They hurt the person, it affects their self-worth or their self-esteem. This behaviour goes beyond what a reasonable person might expect to experience as part of work.

Repetition

Considered separately, the vexatious events may appear to be trivial. However, the repetition of these events could become harassment.

The more serious the vexatious conduct is and the greater the consequences, the less repetition will be required, and the less serious the conduct is and its manifest consequences, the more that persistence over time must be demonstrated.

“A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment. "

_{Act Respecting Labour Standards, CQLR, c. N-1.1, Art. 81.18.}

Hostile or unwanted

Aggressive attitude: conduct which demonstrates aggressive intentions, which is violent, threatening or malicious. All of the words, gestures and behaviour must be taken into account to evaluate this criteria.

Unwanted behaviour: this is behaviour that has not been sought, wanted or desired, neither explicitly nor implicitly.

Affecting dignity or integrity

For behaviour which constitutes harassment at work, the latter must have a negative impact on the person experiencing it.

This impact may affect the person’s dignity, namely it creates psychological (e.g. depressed mood) or physical (e.g. stomach pains) effects. This impact may also affect the person’s integrity, namely deprive them of the respect they have a right to.

Harmful work environment

Psychological harassment makes the workplace toxic for the person suffering it. One of the consequences of psychological harassment is the degradation in the quality of the working environment.

Forms and examples

Psychological harassment in the workplace can take many forms. Here are some examples.

_{Source: Heinz Leymann, Mobbing: La persécution au travail (Persecution at work), Paris, Seuil, 1996.}

Preventing the person from speaking

_{• Constant interruption: During a team meeting, your colleague deliberately keeps cutting you off when you are speaking.}

_{• Denying the opportunity to give an opinion: In an email to the whole team, a member of management requests an opinion from all the team members citing their names, except yours, and that happens regularly.}

_{• Prohibiting from speaking to colleagues: During your sick leave, your manager asks you not to make contact with your colleagues.}

Isolating the person

_{• Refusing to speak to someone}_{: Since you got a promotion, two of your colleagues refuse to speak to you.}

_{• Allocating a work station which removes and isolates colleagues: Working in the marketing department, you are the only person who has been placed on the second floor with the IT team, even though spaces are available close to the other offices.}

_{• Excluded from team activities: Your colleague suggested that everyone go for a drink after work, except for you.}

_{• Prohibiting colleagues from talking to you: You have noticed that for some time your colleagues avoid you and practically never speak to you anymore. A colleague ends up admitting to you that the boss forbid them from speaking to you, except when strictly necessary.}

_{• Denying physical presence: When you greet a colleague in the mornings on arrival, you never get a reply from them.}

Discrediting the person in their work

_{• Abusive management: Every morning, a person from management waits for you near your workstation to check the time you arrive.}

_{• Criticizing work in a degrading manner: One of your customers sends you emails non-stop repeating that the person who did the job before you was much more competent.}

_{• Giving tasks which are very below or above the skills level: You are asked to produce texts in a language which you do not speak and that causes you to be reprimanded.}

_{• Stopping assigning tasks: The tasks which you were employed to do are taken away from you without explanation and you have hardly any work left.}

_{• Simulating professional faults: Your colleague reveals confidential information and accuses you of having done so.}

_{• Making false accusations: You have been accused several times of having stolen from the cash register, even though you are completely innocent.}

Discrediting a person

_{• Imitating a person’s walk, voice, gestures or other to cause ridicule: You have a mannerism and you learn that several volunteers imitate you when your back is turned.}

_{• Derogatory or disrespectful comments: One of the people who supplies your company always speaks to you in an impolite manner, without consideration for you or your work, while they act in a very cordial and professional manner with your colleagues.}

_{• Insults: Your supervisor often insults you by treating you like a good-for-nothing.}

_{• Starting/spreading rumours: Since you started not working more than 4 days out of 5, several of your colleagues started rumours about you.}

_{• Public humiliation: During a seminar, a person who collaborates on one of your projects disclosed very personal information about you in front of everyone.}

_{• Mocking origins, beliefs, values or other: Your colleague, who knows your origins, does not stop mocking the customs of your country.}

Aggressive conduct

_{• Making threats: One of your customers threatens you several times that s/he will write to your supervisor to complain about your service.}

_{• Shouting: A person in a position of authority shouts at you and your colleagues when s/he is frustrated by a situation.}

_{• Wrongdoings: On several occasions you have found your work jacket dirty in your locker.}

_{• Physical aggression / Assaults: A colleague took hold of you by the neck and pushed you against the wall.}

What is not psychological harassment?

_{• Right to management / administration: Support measures when difficulties are encountered, disciplinary powers in the case of a breach (e.g. disciplinary notice, suspension, plan for redress, etc.).}

_{• Favouritism: Because your manager is friends with one of your colleagues, s/he allows them to choose their holidays first even though you are the more senior.}

_{• Lack of consistency between instructions given: Your project manager explains to you what your next tasks are and, a few hours later, your manager asks you to abandon them in order to do other tasks.}

_{• Insufficient value placed on the work carried out: Despite acquiring several clients and large contracts, your managers never highlight your successes in team meetings and individual meetings.}

_{• Difficult working conditions: Company restructuring, extra hours, quotas to meet, tasks added depending on the circumstances (e.g. staff members leaving, more customers, etc.).}

_{• Personality conflicts: We speak about conflict situations when the behaviour of the two parties is focused on the subject of the dispute. The two people fuel the conflict as the matter of the conflict is generally named rather than left unsaid.}

Discriminatory harassment

Discriminatory harassment is a violation of human rights.

⇒ For more information about discriminatory harassment

What the law says

Charter of Human Rights and Freedoms

" Every person has a right to full and equal recognition and exercise of their human rights and freedoms, without distinction, exclusion or preference based on the 14 grounds of discrimination. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

No one may harass a person on the basis of any ground mentioned in Article 10. "

_{Charter of Human Rights and Freedoms, CQLR, c. C-12}

Forms and examples

_{1. Ethnicity: Your manager gives you nicknames related to your origin and that makes you feel uncomfortable.}

_{2. Colour: A colleague stops giving you tasks because you have a dark skin colour.}

_{3. Sex: One of your company’s clients systematically refuses to speak to you because you are the opposite sex.}

_{4. Gender identity or expression: Your colleague constantly asks you inappropriate questions because you are a trans man or woman.}

_{5. Pregnancy: The people you work with on a project make humiliating comments concerning weight gain related to pregnancy in general, when you or your partner are pregnant.}

_{6. Sexual orientation: Your colleagues decide not to invite you to an early evening event because you are in a couple with a person of the same sex as you.}

_{7. Civil status: Your manager does not speak to you since you got married.}

_{8. Age except to the extent provided for by law: Your colleagues do not include you in conversations because you are younger/older than them.}

_{9. Religion: Someone you work with makes systematic disrespectful and degrading comments about religious people and you yourself hold religious beliefs and that makes you feel uncomfortable.}

_{10. Political convictions: You are not allowed to express yourself during a team meeting because you have shared your opinion on the current government and that is not shared by your manager.}

_{11. Language: You are subject to mockery by one of your colleagues because you have difficulties speaking French.}

_{12. Ethnic or national origin: Since you mentioned that you have Colombian origins, your colleague makes comments of a sexual nature to you because their fantasy is about persons of Colombian origin.}

_{13. Social position: Your colleagues and your employer treat you differently because you are still studying and you work part-time.}

_{14. Handicap or the use of any means to palliate a handicap: Several colleagues mock you because you are a hearing-impaired person.}

Between who and where?

Who can be harassed?

Harassment can come from any person or group of people with whom an employee may have contact as part of their work.

Examples:

_{• Colleagues}
_{• Managers}
_{• Board members}
_{• Volunteers}
_{• Interns}
_{• Collaborators}
_{• Suppliers}
_{• Customers}
_{• etc.}

Where can harassment happen?

For a situation to qualify as harassment, it must occur in the workplace context. The link with work can sometimes be subtle, for example when it involves a situation which takes place outside of the normal workplace and working hours.

Examples:

_{• In the usual places of work;}
_{• Outside the usual places of work;}
_{• During usual working hours;}
_{• Outside of usual working hours;}
_{• On social media, by telephone, text messages, emails;}
_{• During a professional event (meetings, travel, business trips, etc.);}
_{• During social activities (professional early evening events, team meals at a restaurant, celebrations for holidays, etc.);}
_{• etc.}

The criteria used by the Administrative Labour Tribunal on health and safety matters in the workplace to determine if an event occurs “due to or in connection with work” are:

_{a) the location of the event;}

_{b) the time of the event;}

_{c) the remuneration for the activity carried out by the employee at the time of the event;}

_{d) the existence and degree of the employer’s authority or hierarchy where the event does not occur on the work premises or during work hours;}

_{e) the purpose of the activity carried out at the time of the event, whether it is incidental, supplementary or optional to their conditions of work;}

_{f) the connective or necessary nature of the employee’s activity in relation to completing the work.}

_{Act Respecting Labour Standards, CQLR, c. N-1.1, Art. 18.19 (1)}

Consequences

The consequences of harassment in the workplace are very real, both with regard to psychological and physical health, as well as on a professional, relationship and financial level.

⇒ For more information about the consequences

Psychological consequences

Here are some examples:

_{• Stress, anxiety, depressed mood;}
_{• Feelings of powerlessness, shame and guilt;}
_{• Decrease in self-esteem;}
_{• Nightmares;}
_{• Irritability;}
_{• Suicidal thoughts;}
_{• Humiliation;}
_{• etc.}

Physical consequences

Here are some examples:

_{•Low energy, fatigue, nausea;}
_{• Decrease in concentration, memory problems;}
_{• Headaches, muscular tensions;}
_{• Shaking, dizziness, high blood pressure;}
_{• Difficulties eating and sleeping;}
_{• etc.}

Professional consequences

Here are some examples:

_{• Disinterest in work tasks;}
_{• Loss of confidence in professional capabilities and skills;}
_{• Drop in performance;}
_{• Increase in absenteeism;}
_{• Stopping work;}
_{• Difficulties related to finding work;}
_{• etc.}

Relationship consequences

Here are some examples:

_{• Difficulties with a partner and with family (irritability, impatience, tensions, conflicts);}
_{• Exclusion or isolation from the work team;}
_{• Loss of trust in the employer and/or colleagues;}
_{• Friendships affected;}
_{• etc.}

Financial consequences

Here are some examples:

^{• Loss of income (increase in absenteeism, stopping work or a loss of employment);}
^{• Changing career (costs of studying, “break” period between two jobs);}
^{• Costs of professional services in connection with the situation of workplace harassment (psychosocial, medical, legal, etc.);}
^{• etc.}

Case law

_{"Law established by judicial decisions in cases." (Merriam-Webster)}

_{Here are some examples related to cases of workplace harassment:}

The notion of intention

_{The vexatious nature is generally assessed on the basis of the person who is experiencing the reported situation, irrespective of the intentions of the person doing the harassing.}

^{(Dhawan vs. Commission des droits de la personne et des droits de la jeunesse, D.T.E 96T-285 (T.D.P.Q.), Confirmed. by D.T.E. 2000T-633 (C.A.)).}

Repetitive nature

_{The repetitive nature goes hand-in-hand with a temporal analysis. We ask ourselves if we are being presented with an accumulation of events which occurred at intervals of time which were sufficiently close together to enable us to make a harassment finding. These intervals will depend on the specific circumstances of each case.}

_{(Hippodrome de Montréal (Montreal racecourse) and the Syndicat des employés des services de l’entretien de l’Hippodrome de Montréal (the Montreal racecourse Union of maintenance service employees), D.T.E. 2003T-133 (T.A.)).}

Hostile or unwanted

_{For proof of harassment, either hostile conduct or unwanted conduct must be demonstrated. Thus, unwanted conduct does not have to be hostile. In effect, the unwanted nature can be demonstrated by the overall context, especially when we are presented with an unequal balance of power.}

_{(Syndicat des employées et employés de métiers d’Hydro-Québec (Hydro-Québec Union of trade employees), local section 1500 SCFP-FTQ and Hydro-Québec, D.T.E.2008T-74 (T.A.).}

Integrity and dignity

_{With regard to integrity, the violation must leave effects which are more strongly felt and which create a psychological or physical imbalance which, although they do not have to be permanent, must be “more than fleeting”. With regard to dignity, effects are not necessary because the consequence of the violation is to deprive a person of the respect to which they have a right.}

_{(Breton vs. Compagnie d’échantillons “ National” ltd., 2006 QCCRT 0601).}

Harmful work environment

_{A harmful work environment is “detrimental, unhealthy and damaging” and “does not allow for the objectives related to the employment contract to be achieved in a healthy manner”.}

_{(Bangia vs. Nadler Danino S.E.N.C., 2006 QCCRT 0419).}

A serious act

_{The act of a bar owner putting his hand inside the bra of an employee has already been considered as constituting a single incidence of serious conduct.}

_{(S.H. vs. Company A, 2007 QCCRT 348).}

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