The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes a subjective and objective test for harassment. In other words, the Human Rights Tribunal of Ontario the HRTO can conclude on the basis of the evidence before it that an individual knew, or should have known, that his or her actions were unwelcome.
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It should be understood that some types of comments or behaviour are unwelcome based on the response of the person subjected to the behaviour, even when the person does not explicitly object. Human rights case law has interpreted and expanded on the definition in section 10 of the Code. In one of the earliest sexual harassment cases in Canada, a tribunal found that in employment, discriminatory conduct may exist on a continuum from overt sexual behaviour, such as unsolicited and unwanted physical contact and persistent propositions, to more subtle conduct, such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.
Sexual harassment may take a variety of forms. Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands. Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one… .
Over time, the definition of sexual harassment has continued to evolve to reflect a better understanding of the way sexual power operates in society.
For example, it is well-established that harassment and discrimination based on sex may not always be of a sexual nature. Behaviour that is not explicitly sexual may still amount to harassment because of sex. The situation must be viewed in the overall context.
Example: A tribunal found that while the most common understanding of sexual harassment is conduct such as making passes, soliciting sexual favours, sexual touching, etc. Human rights law clearly recognizes that sexual harassment is often not about sexual desire or interest at all.
The following list is not exhaustive, but it should help to identify what may be sexual and gender-based harassment:. A person may be especially vulnerable to sexual harassment when they are identified by more than one Code ground. For example, a young lone mother receiving social assistance who has had trouble finding suitable housing for herself and her child may find it very challenging to move when her landlord continues to proposition her sexually after she has said no. If she is a racialized person or has a disability, her experience of the harassment may change or be compounded.
Where multiple grounds intersect to produce a unique experience of discrimination new girl free Ontario CA harassment, we must acknowledge this to fully address the impact on the person who experienced it. Where the evidence shows that harassment occurred based on multiple grounds, decision-makers should consider the intersection when thinking about liability and the remedy available to the claimant. Tribunals and courts have been increasingly using an intersectional approach in the human rights cases they hear.
The tribunal stated:. In another case dealing with the sexual harassment of a woman in the workplace, the tribunal stated in its decision:. As for her vulnerability, it was undoubtedly increased by the fact that as a lesbian, she was a member of a marginalized group. The harassment provisions of the Code subsections 2 25 27 1 and 2 specifically prohibit harassment based on sexual orientation.
Example: A woman working at a coffee shop was asked out on a date by her employer on her second day at work. She declined the invitation. When her employer learned that she was a lesbian, his interest in her intensified and he tried to persuade her to have a heterosexual relationship with him. Research has shown that unmarried women may be more vulnerable to sexual harassment in the labour market than married women, due to a perception that they are less powerful. Racial stereotypes about the sexuality of women have played a part in a of sexual harassment claims. Women may be targeted because of beliefs based on racialized characteristics for example, they are more sexually available, more likely to be submissive to male authority, more vulnerable, etc.
She was also subjected to physical touching and pornography. The tribunal found that her employer sexually and racially harassed her because she is a young Black woman that he, as her employer, could assert economic power and control over. He repeatedly diminished her because of his racist assumptions about the sexuality of Black women. The tribunal awarded separate monetary damages for the racial and sexual harassment. The tribunal also found that the intersectionality of the harassment and discrimination made her mental anguish worse.
A person may also experience sexual harassment or a poisoned environment because they have a relationship with a racialized person.
For example, a woman may be subjected to inappropriate sexual comments because she is dating a racialized man. Sexual harassment may take various forms, and can be said to exist on a range from seemingly mild transgressions  to severe behaviour. In its more subtle forms, sexual harassment may include sexual jokes and innuendo, or unwanted and repetitive gestures of affection. While many forms of sexual harassment take place through person-to-person contact, sexual harassment is also happening at alarming rates through online technology. The growth of technology has created an unprecedented potential for the viral spread of online comment, photographs, video images, etc.
The anonymity afforded by many forms of online communication may make it a vehicle of choice for harassers. However, organizations covered by the Code have a responsibility to maintain poison-free environments. To this end, they must be aware of the potential discriminatory effects when online technology is used on their premises for improper purposes. Section 7 3 a of the Code sets out a person's right to be free from unwelcome sexual advances or solicitation from a person who is in a position to grant or deny a benefit.
This provision of the Code is violated when the person making the solicitation or advance knows, or should reasonably know, that such behaviour is unwelcome.
People who are in a position to confer, grant or deny a benefit or advancement would include an employer, supervisor, manager, job interviewer, housing provider, professor, resident don, teaching assistant, teacher, etc. Possible benefits might include employment opportunities, job-related benefits such as a promotion or bonus or favourable working conditions, housing benefits, a good mark in a course or a positive reference, and other favours.
Example: A professor or teacher makes an unwelcome sexual advance to a student and implies or explicitly makes it known that if she or he does not accept, she or he will likely not pass the course. Sexual solicitation or advances can also occur between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.
Example: One worker demands sexual favours before sharing important job-related information with a colleague. Human rights law recognizes that an unequal power dynamic may make it impossible for a person to give real consent. Where a person depends on another for a job, a place to live, a benefit, etc. Section 8 of the Code prohibits reprisals in general. Sub-section 7 3 b specifically prohibits any form of reprisal or threat of reprisal made in the context of a sexual solicitation or advance.
Example: A tribunal found that a male employer had violated section 7 3 b when he threatened to dismiss a female employee if she did not accept his dinner and club invitations and then dismissed her after she refused his third request. This le to a denial of equality under the Code.
8. preventing and responding to sexual harassment
In employment, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rate of pay. Example: When a co-worker ended a romantic relationship with him, a man showed intimate cell-phone photographs of her to several people in their workplace. His supervisor heard that other people had seen the pictures, but he did not see them himself, and chose not to intervene in what he saw as a personal matter — even though he had a legal duty to do so under the Code.
While the idea of a poisoned environment has arisen mainly in employment, it can also happen in housing, education and other social areas covered by the Code. Example: A professor held academic meetings with a potential graduate student. Educators, employers, housing providers and other responsible parties have a duty to keep a positive non-discriminatory environment that is free from sexual harassment.
Not addressing a sexualized atmosphere may open the door for more egregious sexual behaviour. In one case, a tribunal commented:. A poisoned environment may be based on the nature of the comments or conduct and the impact of these on an individual rather than on the of times the behaviour occurs. Example: A poisoned environment can result from a single action such as a statement by a union representative that women in general, or women of a certain race or ethnic background, are not suitable as union representatives. Similarly, a poisoned environment may be created by male students distributing or publishing written materials on a college campus that include threatening or intimidating content towards women.
A poisoned environment can be created by the comments or actions of any person, regardless of his or her position of authority or status. Therefore, a co-worker, supervisor, co-tenant, housing provider, member of the Board of Directors, fellow student, teacher, contractor, client, etc.
Whoever is involved, the person in charge has a duty to deal with it. Other examples of situations that could be seen as a violation of the Code by creating a poisoned environment include:.
Behaviour does not have to be directed at any one person to create a poisoned environment. As well, a person can experience a poisoned environment even if he or she is not a member of the Code -protected group that is the target. Example: A hiring team at a law firm was conducting interviews for articling student positions. Inappropriate comment or conduct does not just poison the environment for the people targeted — it is offensive to everyone.
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Every employer, housing provider, education provider or other responsible party must make sure that their environments are free from this sort of behaviour, even if no one objects, and even if there is widespread participation in the behaviour. As mentioned earlier, the OHRC sees gender-based harassment as a form, or sub-set, of sexual harassment. Therefore, many, if not most, forms of gender-based harassment would now be prohibited under the ground of gender expression as well. A person experiencing gender-based harassment may file a sexual harassment claim with the HRTO.