Human rights law, sexual harassment and discrimination

Occupational health and safety law treats violence and harassment as hazards to be prevented. A second body of law treats harassment linked to personal characteristics such as sex, race, religion or disability as a form of discrimination. The two overlap but are not the same: they have different definitions, different enforcement bodies, different remedies and different procedures. Supervisors and anyone handling complaints need to understand both, because a single complaint can raise safety duties and discrimination duties at the same time. This lesson introduces the main principles.

Human rights codes in Canada

Every province and territory has a human rights code or act, and the Canadian Human Rights Act covers federally regulated employers. These laws prohibit discrimination in employment on protected grounds, which typically include race, colour, ancestry, place of origin, ethnic origin, citizenship, religion or creed, sex (including pregnancy), sexual orientation, gender identity, gender expression, age, marital and family status, disability and, in some jurisdictions, other grounds such as political belief, social condition or record of offences. Most codes expressly prohibit harassment on these grounds, and all of them prohibit sexual harassment, either explicitly or as a form of sex discrimination. Human rights laws are quasi-constitutional: they take precedence over other laws and cannot be waived by contract.

The Supreme Court of Canada defined sexual harassment in Janzen v. Platy Enterprises (1989) as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. The Court recognized that sexual harassment is a form of sex discrimination and an abuse of power. That decision remains the foundation of Canadian sexual harassment law. In Robichaud v. Canada (Treasury Board) (1987), the Court held that employers are liable under human rights law for discriminatory harassment by their employees in the course of employment, regardless of the employer's intent, which gives employers a strong reason to prevent harassment and to respond effectively when it occurs.

What human rights law requires of employers

Human rights law requires employers to provide a workplace free of discrimination and harassment on protected grounds. In practice, tribunals expect employers to have a clear anti-harassment policy, to communicate it, to train managers and staff, to provide accessible complaint procedures, to respond promptly and seriously to complaints, to investigate fairly, to take appropriate corrective action and to protect complainants and witnesses from reprisal. An employer that knew or ought to have known about harassment and failed to act can be held liable even if it did not participate. Tribunals have also held that a poor investigation, or no investigation, can itself breach the code. Remedies can include compensation for injury to dignity, feelings and self-respect, lost wages, orders to change policies or provide training, and reinstatement.

Duty to accommodate

Human rights law also imposes a duty to accommodate people up to the point of undue hardship, based on protected grounds such as disability, religion and family status. This duty matters in violence and harassment programs in several ways. A worker who develops anxiety or post-traumatic stress after an assault may need accommodation, such as a modified schedule, a different work area or a graduated return to work. A worker whose aggressive behaviour is linked to a disability may need accommodation and support, but accommodation does not require an employer to tolerate violence or threats that put others at risk. And a client whose aggressive behaviour is linked to a medical condition is still a source of risk that must be controlled, even though the response should be clinical and compassionate rather than punitive.

Overlap with OHS law

A complaint can fall under both OHS law and human rights law. Suppose a worker is repeatedly mocked by co-workers because of her religion. Under OHS law it is workplace harassment, and the employer must investigate under its harassment program. Under human rights law it is discriminatory harassment, and the worker may file a human rights complaint within the limitation period, which is often one year from the last incident (it varies by jurisdiction; check the deadline for your province or the federal Commission). The internal investigation does not remove the right to file a human rights complaint, and a unionized worker may also have the right to file a grievance. Employers should design a single, coherent process that meets the requirements of all the laws that apply, rather than separate processes that confuse workers.

Sexual harassment in practice

Sexual harassment takes many forms. It includes unwelcome sexual comments, jokes and innuendo; questions about someone's sex life; displaying or sending sexual images; leering, gestures and invading personal space; unwanted touching, hugging or kissing; repeated requests for dates after a clear no; sexual advances combined with promises or threats about work; and sexual assault. It also includes harassment based on sex, sexual orientation or gender identity that is not sexual in content, such as hostile comments that women do not belong in a trade, mocking a worker's gender expression or deliberately using the wrong name or pronouns to humiliate a transgender colleague. Sexual harassment can be committed by anyone against anyone, including by women against men and between people of the same sex or gender.

Power imbalances make sexual harassment more likely and harder to report. Workers who are young, new, temporary, migrant or dependent on tips, and workers whose harasser controls their schedule or evaluation, are especially vulnerable. Workplaces with a heavily male-dominated culture, a culture of heavy drinking at work events, isolated work, or customers who are treated as always right also tend to have more sexual harassment. Prevention therefore involves culture and structure, not only rules.

Bystanders and allies

Most harassment happens in front of others, and bystanders have real power to stop it. Bystander intervention training teaches the five Ds: direct (calmly naming the behaviour or asking the person to stop, when it is safe), distract (interrupting the situation with a question or task), delegate (asking a supervisor or someone with authority to step in), delay (checking in with the target afterwards and offering support) and document (writing down what happened, and sharing it with the target to use as they choose). Supervisors who witness harassment have a duty to act; they cannot treat it as a private matter between co-workers.

Retaliation and reprisal

Every law in this area protects people who complain, participate in investigations or oppose harassment from reprisal or retaliation. Retaliation can be obvious, such as firing or demotion, or subtle, such as worse shifts, exclusion from meetings, unjustified discipline, cold treatment by managers or spreading rumours about the complainant. Retaliation is unlawful even if the original complaint is not substantiated, as long as it was made in good faith. Supervisors should be reminded of this explicitly whenever a complaint is made, and the complainant's treatment should be monitored after the investigation ends.

Designing a single complaint process

Because one complaint can engage several laws, the most practical approach is a single, well-designed process that satisfies all of them. That process should explain, in plain language, what conduct is covered, how to make a complaint and to whom, including at least one option outside the complainant's chain of command, how complaints will be assessed and investigated, what interim measures may be taken, how confidentiality will be protected, how the parties will be told the outcome, and what protection against reprisal applies. It should state clearly that using the internal process does not remove a worker's right to go to an outside body, such as a human rights commission or tribunal, an anti-discrimination agency, a labour board or the police, and it should give contact information for those bodies.

The process should also be accessible. Provide it in the languages workers use, make sure workers with disabilities can use it, allow complaints to be made verbally as well as in writing, and allow a support person or union representative to attend meetings. Keep track of complaints by type, protected ground, location and outcome so that patterns can be spotted. If several complaints involve the same manager, team or ground, such as race or sex, the organization may need to look beyond individual cases and address systemic problems through training, leadership changes or a workplace review.