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… 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.
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. Sexual harassment may take a variety of forms. In another decision, the Supreme Court of Canada stated: 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. Human rights case law has interpreted and expanded on the definition in section 10 of the Code. An example could be a person withdrawing, or walking away in disgust after a co-worker has asked sexual questions. 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. 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. Determining the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed. The objective component considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received. The subjective part is the harasser’s own knowledge of how his or her behaviour is being received.
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. However, depending on the circumstances, one incident could be significant or substantial enough to be sexual harassment.Įxample: A tribunal found that an incident where a male employee “flicked the nipple” of a female employee was enough to prove that sexual harassment had taken place. Section 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” Using this definition, more than one event must take place for there to be a violation of the Code.
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