8. Preventing and responding to sexual harassment

The ultimate responsibility for maintaining an environment free from sexual harassment rests with employers, housing providers, educators and other responsible parties covered by the Code. From a human rights perspective, it is not acceptable to choose to stay unaware of sexual harassment, whether or not a human rights claim has been made.^[170]

Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code, including sexual harassment. Employers, housing providers, educators and other responsible parties must make sure they maintain poison-free environments that respect human rights. This takes commitment and work, but is worth it.

Employers, housing providers, educators and other responsible parties violate the Code where they directly or indirectly, intentionally or unintentionally infringe the Code, or where they do not directly infringe the Code but authorize, condone or adopt behaviour that is contrary to the Code.

There is a clear human rights duty not to condone or further a discriminatory act that has already happened. To do so would extend or continue the life of the initial discriminatory act. This duty extends to people who, while not the main actors, are drawn into a discriminatory situation through contractual relations or in other ways.[171] Depending on the circumstances, employers, housing providers, educators and other responsible parties may be held liable for the actions of third parties (such as customers, contractors, etc.) who engage in sexually harassing behaviour. ^[172]

Human rights decision-makers often find organizations liable, and assess damages, based on the organization’s failure to respond appropriately to address discrimination and harassment. An organization may respond to complaints about individual instances of discrimination or harassment, but they may still be found to have not responded appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that condones sexual harassment, despite punishing the individual harassers. In these cases, organizations must take further steps, such as training and education, to better address the problem. An organization has a legal duty to respond to a complaint of sexual harassment, and may be found liable for not doing so, even where the complaint is ultimately not made out.^[173]

Some things to consider^[174] when deciding whether an organization has met its duty to respond to a human rights claim include:

• procedures in place at the time to deal with discrimination and harassment^[175]
• the promptness of the organization’s response to the complaint^[176]
• how seriously the complaint was treated
• resources made available to deal with the complaint
• whether the organization provided a healthy environment for the person who complained
• how well the action taken was communicated to the person who complained.^[177]

In its publication entitled Guidelines on developing human rights policies and procedures, the OHRC provides more information to help organizations meet their human rights obligations and take proactive steps to make sure their environments are free from discrimination and harassment.^[178]

Anti-sexual harassment policies

Employers, housing providers, educators and other responsible parties can go a long way toward promoting a harassment-free environment for individuals protected by the Code by having a clear, comprehensive anti-sexual harassment policy in place. In cases of alleged sexual harassment, the policy will alert all parties to their rights, roles and responsibilities.^[179] Policies must clearly set out how the sexual harassment will be dealt with promptly and efficiently.

Everyone should be aware of the existence of an anti-sexual harassment policy and
the steps in place for resolving complaints. This can be done by:

• giving policies to everyone as soon as they are introduced
• making all employees, tenants, students, etc. aware of them by including the policies in any orientation material
• training people, including people in positions of responsibility, on the contents of the policies, and providing ongoing education on human rights issues.

An effective sexual harassment policy can limit harm and reduce liability. It also promotes the equity and diversity goals of organizations and institutions and makes good business sense.

Employers, housing providers, educators and other responsible parties also need procedures for dealing with sexual harassment by third parties. These procedures should show how people are expected to respond to the harassment, make sure that serious and/or ongoing problems are brought to the attention of those in charge, and also that the people in charge take appropriate steps to assess the situation and take remedial action.^[180]

In practice, it is very important that all complaints of sexual harassment be taken seriously and dealt with promptly, that the complaint mechanism be applied, and that persons making complaints not be subjected to discipline or reprisal.

All responsible parties should monitor their environments regularly to make sure they are free of sexually harassing behaviours. Proactive steps to maintain a poison-free environment will help make sure that sexual harassment does not take root, and is not given a chance to escalate. 

Suggested contents of an anti-sexual harassment policy

1. A vision statement setting out the organization’s commitment to maintaining a fair and equitable environment free of sexual and gender-based harassment, and stating that the organization will not tolerate sexual and gender-based harassment.
2. A statement of rights and obligations under the Ontario Human Rights Code.
3. A list of the prohibited grounds of discrimination listed in the Code.
4. The Code definition of "sexual harassment" and a definition of "gender-based harassment.”
5. An explanation of the concept of a "poisoned environment" as a violation of the Code, and examples of a poisoned environment that are meaningful in that organization’s context.
6. A description of unacceptable behaviour, such as: 
   • examples of sexual harassment as listed in the OHRC’s Policy on preventing sexual and gender-based harassment.
7. ​A description of who the policy applies to (such as employers, employees, third party service providers, etc.).
8. How internal complaints will be handled with details on:
   • who to complain to
   • an assurance that the person handling complaint should be independent, expert, etc.
   • confidentiality
   • reassurance that the person making the complaint will be protected from reprisal, or threat of reprisal
   • help that is available for parties to a complaint
   • the availability of Alternative Dispute Resolution, such as mediation, to resolve a complaint
   • how the complaint will be investigated
   • how long the process will take
   • steps that will be taken if it is not appropriate for the person making the complaint to continue working with the person/people being complained about
   • how the organization will deal with the complaint when the harasser is unknown (e.g. cyber harassment).
9. Remedies that will be available if the claim of sexual harassment is proven, such as:
   • disciplinary measures to be applied (for example, in employment, measures could range from a verbal warning or a letter of reprimand to termination)
   • compensation to the person who made the complaint.
10. ​A statement reinforcing the right of individuals to file other types of complaints, such as:
    • ​a human rights application with the Human Rights Tribunal of Ontario at any time during the internal process, as well as an explanation of the one-year time limit in the Code
    • a complaint under the Occupational Health and Safety Act, if applicable
    • a grievance under a collective agreement, if applicable
    • criminal charges, if applicable.

8.1 Employers

Employers have a duty to ensure a poison-free work environment and to take steps to make sure that sexual harassment is not taking place in their workplace. Once they learn of sexual harassment, employers must take immediate action to remedy the situation. If the employer is satisfied the harassment has happened, they must consider both disciplinary action and further prevention steps, such as training or education.

Under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability. Vicarious liability may make an employer responsible for discrimination arising from the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.

Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3 of the Code will apply.^[181]

In these cases, the “organic theory of corporate liability” may also apply. Under this theory, an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization. In such cases, an organization will be liable for the decisions, acts or omissions of the employee where:

• the employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that violates the Code
• the employee who is part of the “directing mind” does not respond adequately to harassment or inappropriate behaviour they are aware of, or should reasonably be aware of.

Generally speaking, managers and central decision-makers in an organization are part of the “directing mind.” People with only supervisory authority may also be part of the “directing mind” if they act, or are seen to act, as representatives of the organization. Even non-supervisors may be considered part of the “directing mind” if they in effect have supervisory authority or significant responsibility for guiding employees.

Example: A head chef is responsible for addressing such problems if they arise among the kitchen staff.

Example: A lead-hand who is part of the bargaining unit would have "directing mind" authority with union members.

Persons who are central decision-makers in an organization, such as members of the Board of Directors, may also be seen as part of the “directing mind.”

Employers may also have responsibility for sexual harassment by third parties in the workplace. Third parties may include contractors, customers^[182] or clients,^[183] service or repair people,^[184] etc.

Example: An employer was found liable for the sexual harassment of its employees in the workplace by a service technician who was on-site to fix office equipment.^[185]

Note that an employer may also be held liable for sexual harassment in cases involving activities or events that happen outside of normal business hours or off business premises, but are linked to the workplace and employment.

Example: An employer may be held liable for incidents that take place during business trips, company parties or other company-related functions.^[186]

As mentioned previously, legal decisions have interpreted “in the workplace” (a phrase that appears in several Code sections prohibiting sexual harassment in employment) broadly to include comment or conduct that has work-related consequences, regardless of where it occurred.^[187] In one case, for example, a restaurant manager made repeated, explicit, and intimate advances and comments of a sexual nature to a waitress. Some of the comments were made during an after-hours card game with co-workers, and some were communicated in a text message and a voicemail sent while he was at a late night party attended by other male staff members. The tribunal in that case concluded that while not all the incidents occurred at work or during work hours, they were sufficiently connected to the workplace to engage the Code’s protection. The tribunal stated:

Importantly, all of the incidents, regardless of where they occurred, had job-related consequences for the applicant. Perhaps the clearest example of this is the applicant's evidence that [she] could not face returning to work at the Restaurant knowing that her boss and some of her co-workers had thought and talked about her as described in the voicemail message.^[188]

Increasingly, sexual harassment is taking place through electronic media (such as blogs, email, text messages, or social media). Electronic media can be found to be an extension of the workplace where sexual harassment that is communicated electronically has work-related consequences.^[189]

Unwanted, uninvited visits by an employer, supervisor, manager, co-worker, etc. to an employee’s home may also be sexual harassment.

Example: A tribunal found that an employer’s unwanted phone calls and visits to a woman’s home were “all part of a course of conduct that started in the workplace and extended to her home.”^[190]

Depending on the circumstances, such visits may also amount to criminal harassment under the Criminal Code.^[191]

In other jurisdictions, employers have also been held liable for sexual harassment where the perpetrator is a member of the employer’s family. In a British Columbia case, a female employer was held liable for her husband’s sexual harassment of a live-in caregiver, even though she had nothing to do with the harassment herself.^[192] Employers in live-in caregiver situations have also been held liable when their children sexually harassed their caregiver.^[193]

As mentioned earlier, the Occupational Health and Safety Act also imposes requirements on employers. Employers in workplaces with five or more employees must prepare written policies on workplace violence and harassment. The policies must be reviewed at least annually. Employers must also develop a program to put the workplace violence policy into action. The OHSA also contains provisions that require employers to do risk assessments to prevent workplace violence.

Prevalence of workplace harassment is one of the risk factors that employers must examine when assessing the risk of workplace violence under the requirements of the Occupational Health and Safety Act. Joint health and safety committees and other representatives should also consider workplace harassment as a risk factor for workplace violence. Workplace Violence Programs should include measures and procedures for workers to report “new risks” that include prevalence of harassment associated with workplace violence. As well, Ministry of Labour Health and Safety Inspectors should assess whether workplace harassment was a contributing factor when dealing with incidents of workplace violence.

Depending on the circumstances, employers who fail to protect their employees from violence in the workplace may also be found criminally responsible. Section 217.1 of the Criminal Code states:

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. 

Unions, vocational associations and professional organizations are also responsible for making sure that they do not discriminate against or harass their members. They must make sure they are not causing or contributing to discriminatory actions in a workplace. Just like employers, a union can be held liable for policies or actions that are discriminatory. This includes negotiating a term in a collective agreement that results in discrimination or not taking reasonable steps to address workplace sexual harassment or a poisoned environment.^[194]

8.2 Housing providers

Housing providers must take proactive steps to make sure that sexual harassment does not take place on their premises. If sexual harassment happens, they must take immediate steps to intervene and respond appropriately. The often dramatic power imbalance between housing providers and female tenants, for example, may mean that women may not report sexual harassment due to fear of retribution, being evicted, or concerns about their physical safety, the safety of their families and/or their personal belongings.

As mentioned earlier, under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will
be held responsible for discrimination, including acts or omissions, committed by employees^[195] or agents in the course of their employment. This is known as vicarious liability and it also applies to human rights violations in housing.

Example: A contracted maintenance worker repeatedly makes lewd comments to a young female tenant. The woman complains to her landlord. The landlord has a duty to promptly address the worker’s conduct and to make sure the living environment is poison-free.

Vicarious liability may make a housing provider responsible for discrimination or harassment arising from the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.

Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3 of the Code will apply.

In these cases the “organic theory of corporate liability” may also apply. Under this theory, an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization. In such cases, an organization will be liable for the decisions, acts, or omissions of the employee where:

• the employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that violates the Code
• the employee who is part of the “directing mind” does not respond adequately to harassment or inappropriate behaviour they are aware of, or should reasonably be aware of.

Generally speaking, managers and central decision-makers in an organization are part of the “directing mind.” People with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization (for example, an agent of the landlord, board member, superintendent, etc.). Even non-supervisors may be considered to be part of the “directing mind” if they in effect have supervisory authority or have major responsibility.

8.3 Educators

Educators provide a forum for teaching critical thinking, equity, mutual respect and civic responsibility – and they can be agents of positive social change. One author notes:

Schools represent the only formal institutions to have meaningful contact with nearly every young person in Canada and are therefore in a unique position to equip youth with the knowledge and skills necessary to exercise healthy sexuality throughout their lives.^[196]

Education providers^[197] have a legal duty to provide students with an educational environment that does not expose them to discriminatory harassment.^[198] Part of the duty to maintain a safe learning environment for students includes addressing bullying and harassing behaviour. Students who are being harassed are entitled to the Code’s protection where the harassment creates a poisoned education environment. This protection would apply to:

1. education providers who themselves harass students based on Code grounds
2. education providers who know or ought to know that a student is being harassed based on Code grounds, and who do not take effective individualized and systemic steps to remedy that harassment.

Educators have a responsibility to take immediate steps to intervene in situations where sexual harassment may be taking place. Educators who know of, or should have knowledge of, the sexual harassment and could take steps to prevent or stop it, may be liable in a human rights claim.

Amendments to the Education Act, as a result of Bill 13, the Accepting Schools Act (An Act to amend the Education Act with respect to bullying and other matters), came into effect in 2012. While the Accepting Schools Act focuses on “bullying” rather than harassment, it addresses many of the same components as the Code prohibition of sexual harassment in education. For example, Bill 13 looks specifically at bullying related to a person’s sex, sexual orientation, gender, gender identity and gender expression. The Bill’s preamble states that all students should have a school climate that is inclusive and accepting of sex, sexual orientation, gender identity and gender expression, among other characteristics. The preamble recognizes multiple actors (e.g. government, educators, staff, parents and students) that need to play a role in “preventing inappropriate behaviour, such as bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia.” Bill 13 imposes duties on the Minister of Education, school boards and principals that relate to maintaining education environments free of sexual harassment. 

If left unchecked, sexual harassment can impede a student’s equal access to education services and ability to fully take part in the education experience.

Example: An 11-year-old girl who entered early puberty was subjected to ongoing, unwanted attention from boys in her classroom. This attention included snapping her bra, “bumping” into her body, and circulating hand-drawn pictures of her with exaggerated sexual characteristics. Although she told her teacher of her discomfort, the behaviour continued. The girl was so upset she refused to go to school.

Educators should take steps to teach students about human rights and put strategies in place to prevent discrimination and harassment. If an allegation of sexual harassment is substantiated, they must take appropriate action. This may include disciplinary action.

It is public policy in Ontario that school boards must:

• provide opportunities for all members of the school community to increase their knowledge and understanding of such issues as bullying, violence, inappropriate sexual behaviour, bias, stereotyping, discrimination, prejudice and hate; critical media literacy, and safe Internet use^[199]
• conduct anonymous school climate surveys of their students, staff and parents at least once every two years, that include questions on sexual harassment, bullying/harassment related to sexual orientation, gender identity and gender expression^[200]
• adhere to the Ontario Human Rights Code when they develop and implement their policies.^[201]

School board employees who work directly with students must also respond to any student behaviour that is likely to have a negative impact on the school climate. This behaviour includes all inappropriate and disrespectful behaviour, including sexist comments or jokes.^[202]

Anti-sexual harassment training for educators and school staff is an important first step in creating a climate of mutual respect in an education environment. Such training should include information about gender-based harassment. Educators will then be in a position to appropriately address the various forms of sexual and gender-based harassment that may arise.

Education providers can help to prevent sexual and gender-based harassment before it happens by:

• showing a clear attitude of non-tolerance towards sexual and gender-based harassment
• showing a clear attitude of non-tolerance toward discrimination based on sexual orientation, including homophobic bullying
• having an effective anti-sexual and gender-based harassment policy in place and making sure all students know about it
• communicating clearly to the student body the consequences of all forms of sexual and gender-based harassment, including online sexual and gender-based harassment
• including online harassment prevention measures in sexual harassment and school Internet policies
• teaching students and staff about sexual harassment, including gender-based harassment, sex-role stereotyping, and homophobic comment and conduct
• engaging in role-playing and educational exercises to help students develop increased compassion and a greater awareness of the impact that sexual and gender-based harassment may have on others
• teaching students media literacy to enable them to engage in critical thinking and ask appropriate questions about what they watch, hear and read
• teaching students how to protect themselves from online sexual and gender-based harassment
• respecting the confidentiality of students who report sexual and gender-based harassment and related bullying. This may encourage other students who are being harassed to report it in its early stages
• making sure staff have adequate resources, training and tools to effectively monitor for sexually harassing behaviours, and to identify and report incidents when they do occur.

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