Sexual harassment is a form of discrimination based on sex.[1] The Ontario Human Rights Code (the Code) prohibits all forms of discrimination based on sex, and includes provisions that focus on sexual harassment. The Code offers this protection in five “social” areas: services, goods and facilities; occupancy of accommodation (housing); contracts; employment; and membership in vocational associations such as trade unions.
If left unchecked, sexual harassment can limit a person’s ability to earn a living, get housing, get an education, feel safe and secure, and otherwise take part fully in society. Organizations that do not take steps to prevent sexual harassment from taking place can incur major costs in decreased productivity, low morale, increased absenteeism and health care costs, and potential legal expenses.
The Code makes it public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. Code provisions are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to it. The goal here is to make sure everyone can live and work free from harassment based on a prohibited ground under the Code.
While the Code protects both men and women from sexual harassment, women are more affected than men. A broader culture of sexism[2] plays a major role in the social processes that give rise to and entrench discrimination based on sex. Sexual harassment, as a form of discrimination based on sex, may be understood in this context.
International human rights conventions[3] and Canadian legal decisions[4] have recognized sexual harassment as an abuse of power that may reinforce a woman's historic lower status in relation to men.[5]
One author comments:
Across society – be it the household, educational institution, or workplace – harassment on the basis of sexuality exists. And, in each setting, while unique from one another, the harassment of women by men functions to maintain the domination of men over women, at both the individual and collective levels.[6]
Sexual harassment cuts across socio-economic classes, ethnicities, professions and social spheres. One author notes:
It can happen to executives as well as factory workers. It occurs not only in the workplace and in the classroom, but even in parliamentary chambers and churches.[7]
Increasingly, gender-based harassment is being recognized as a form or subset of sexual harassment. This policy will look at how gender-based harassment is used as a “gender policing” tool to try to reinforce conformity with traditional sex-role stereotypes, or as a bullying tactic, often between members of the same sex.
The effects of sexual harassment can be serious and long-term. Victims of sexual harassment may experience a range of physical and emotional effects, including anxiety, depression, fatigue, weight loss, nausea and stomach problems, inability to sleep, withdrawal from relationships, self-blame, reduced self-esteem, and post-traumatic stress disorder.
The principles set out in this policy will, depending on the circumstances, apply to instances of sexual harassment in any of the social areas covered by the Code. However, to reflect the most important recent developments in the law and in social science research, this policy will focus on the areas of employment, housing and education.
This policy will help you understand:
- how to define and identify sexual and gender-based harassment
- how to take steps to prevent sexual and gender-based harassment
- how to address sexual and gender-based harassment when it does occur
- your rights and responsibilities
- where to find further resources.
[1] The Supreme Court of Canada has ruled unanimously that sexual harassment is discrimination based on sex: Janzen v. Platy Enterprises, [1989] 1 S.C.R. 1252. For an earlier human rights tribunal case on the same principle, see Bell v. Ladas, (1980), 1 C.H.R.R. D/158 (Ont. Bd. Inq., now the Human Rights Tribunal of Ontario, or HRTO). For a recent case reaffirming this principle, see Friedmann v. MacGarvie, 2012 BCCA 445.
[2] Sexism can be defined as an ideology that either explicitly or implicitly asserts that one sex (generally male) is inherently superior to another sex (typically female). Sexist ideology can be openly expressed in slurs, jokes or hate crimes. However, it can be more deeply rooted in attitudes, values and stereotypical beliefs. These beliefs may be conscious or unconscious. Sexism is a wider phenomenon than discrimination based on sex. While the OHRC seeks to combat sexism through educating the public and advancing human rights, not every example of sexism can be dealt with under the Code. The Code only prohibits incidents of discrimination based on sex (including sexual harassment) in specified social areas.
[3] For more information, see the section entitled “International protections.”
[4] See, for example, Bell v. Ladas, (1980), supra, note 1; Janzen v. Platy Enterprises Ltd., (1989) supra, note 1; Sanford v. Koop, 2005 HRTO 53 (Ont. Human Rights Trib.)
[5] Cuff v. Gypsy Restaurant (1987), 8 C.H.R.R. D/3972 (Ont. Bd. Inq.); see also Chuvalo v. Toronto Police Services Board (2010) OHRTD No. 2027 (HRTO) at para. 193, in which the tribunal stated that the sexual harassment experienced by the claimant “stripped her of her dignity as a woman.” (Reconsideration request denied in 2011 HRTO 1291.)
[6] Melissa Sheridan Embser-Herbert, “A Missing Link: Institutional Homophobia and Sexual Harassment
in the U.S. Military,” in In the Company of Men: Male Dominance and Sexual Harassment, James E. Gruber and Phoebe Morgan, eds. (Boston: Northeastern University Press), 2005, 215 at 237.
[7] Arjun P. Aggarwal, Sexual Harassment in the Workplace (1987, Butterworths Canada Ltd.) at 1, as quoted in Janzen v. Platy Enterprises Ltd. (1989), supra, note 1.Note, however, as this policy will discuss, that people who identify by more than one Code ground are often more vulnerable to sexual harassment.