Workplace Harassment

Workplace harassment can prevent workers from doing their job effectively. Workplace harassment, if left unchecked, has the potential to escalate into violent behaviour. All workers are entitled to a safe and healthy workplace.

It is the employer’s obligation and duty to prevent workplace harassment and to investigate all harassment complaints.

This guide will define harassment and workplace harassment, provide examples, and discuss the different forms of workplace harassment.

What is Workplace Harassment?

There are various employee harassment laws in Canada. According to Ontario’s Occupational Health and Safety Act (“OHSA”), workplace harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

It does not matter whether the conduct was intentional or unintentional; all that matters is that the conduct is unwelcome and unwanted.

Employees are protected against workplace harassment by applicable workplace health & safety legislation. Each province has established their own health and safety legislation. For example, workplace health and safety are provincially regulated in Ontario under the OHSA. Other provinces include:

• Policy Item P2-21-2 under the British Columbia’s Workers Compensation Act.
• Alberta’s Occupational Health and Safety Act
• The Saskatchewan Employment Act
• Manitoba’s Regulation 217/2006: Workplace Safety and Health Regulation

The Canada Labour Code protects employees against workplace harassment in federally regulated workplaces. Examples of these workplaces are:

• Transportation companies, such as trucking companies and railways.
• Television companies.
• Broadcast workplaces.

In addition to the various workplace health and safety legislation, human rights legislation also protects individuals from harassment in the workplace.

Human rights legislation states several protected grounds that cannot be infringed upon in employment, housing, and other protected social areas. The following protected grounds are included in all Canadian human rights legislation:

• Sex.
• Disability.
• Gender identity.
• Race.
• Ethnicity.
• Religion.

What Constitutes Workplace Harassment?

Workplace harassment examples may include:

• Offensive or intimidating comments or jokes about co-workers.
• Bullying or aggressive behaviour.
• Displaying or circulating offensive pictures or materials.
• Making gestures that seek to intimidate.
• Discrediting someone by spreading malicious gossip or rumours.

It is important for employers, supervisors, and workers to identify occurrences of workplace harassment. While it is important to review what workplace harassment is, it is just as vital to understand what workplace harassment is not. Some examples that may not be considered workplace harassment include:

• Normal exercise of management’s right to manage such as day-to-day oversight of operations.
• Employee performance management.
• Workplace disagreements.
• A social relationship welcomed by both individuals.
• Friendly gestures among co-workers such as a high-five.

Is Yelling Workplace Harassment?

Yes, yelling can count as workplace harassment if the yelling constitutes as abusive behaviour. Especially if the yelling continues over a period and is unaddressed by the employer.

This includes yelling after an employee makes a simple mistake. Mistakes happen – but yelling is never the answer.

Forms of Workplace Harassment

Workplace harassment can take many forms. For example, bullying and harassment in the workplace are the most known, however, workplace harassment may also include:

• Workplace Violence.
• Workplace Sexual Harassment.
• Discriminatory Harassment.
• Cyberbullying.

Workplace Violence

Workplace violence is generally defined as an exercise of physical force by a person against a worker, in the workplace, that causes or could cause physical injury.

It is not necessary for actual physical force to be exercised. Workplace violence may also include an attempt of physical force or a threat of physical force that would cause injury to another worker. Workplace violence and harassment examples include:

• Direct threats of intent to inflict harm.
• Physical attacks (hitting, shoving, kicking).
• Threatening behavior (shaking fists angrily).
• Throwing an object at another worker.
• Destroying property to intimidate.

Some industries may experience workplace violence more often than others, such as healthcare settings and retail stores.

Workplace Sexual Harassment

Workplace sexual harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression.” Examples of workplace sexual harassment include:

• Asking questions, talking, or writing about sexual activities.
• Displaying sexual images or offensive sexual jokes in print or electronic form.
• Unnecessary physical contact, including inappropriate touching.
• Demanding hugs or dates.
• Making gender-related comments about someone's physical characteristics.

Sexual harassment in the workplace also includes sexual solicitation or making sexual advances when the perpetrator has the authority to confer, grant or deny a benefit to the worker.

For example, a manager threatening to penalize or punish a worker if they refuse a sexual advance would be considered workplace sexual harassment.

Human rights legislation also protects individuals from being harassed based on various protected grounds including sex, sexual orientation, gender identity and gender expression.

Discriminatory Harassment

As stated above, human rights legislation protects individuals from harassment in the workplace. Employees may face harassment because of their sexual orientation, gender identity, disability, age, or religion. This is considered discrimination under human rights legislation.

Employers have the responsibility to ensure a healthy, safe, and inclusive workplace, free from discrimination.

Cyberbullying

Due to the COVID-19 pandemic, many workplaces have shifted to remote working, which often results in less interaction between coworkers in a workplace setting. This may reduce instances of work harassment. However, workplace harassment can still occur online.

For example, workplaces that have shifted to a work from home model rely on internal messaging systems to communicate. When online, the communication between employees and even with managers may be more informal than when communications are face-to-face. Such informal communication may increase the risk of unintentional harassment, including inappropriate jokes or remarks.

In other circumstances, an employee may experience a video call where their manager was aggressive. If the manager continues to be aggressive with employees, this may constitute workplace harassment.

Who is Responsible for Workplace Harassment?

Everyone in the workplace has the responsibility not to engage in workplace harassment. This includes the employer, senior managers, and employees.

Workplace harassment and violence prevention regulations in Canada states that employers must carry out a workplace assessment and develop a policy to ensure harassment and violence doesn’t take place. An employer’s responsibilities include:

• Implementing policies and practices with respect to workplace harassment and workplace violence.
• Complying with workplace harassment and violence prevention regulations.
• Proactively providing a workplace where human rights are respected, and employees are afforded equal opportunities.
• Investigating complaints of workplace harassment.

Employers are also responsible to remedy any employee-on-employee harassment that is brought to their attention.

How to Prevent Workplace Harassment

Employers must implement policies with respect to workplace violence and workplace harassment according to provincial and federal legislation. Characteristics of a workplace harassment and violence prevention policy should include:

• An organizational commitment to a work environment, free from workplace harassment and workplace violence.
• Definitions of key terms such as “harassment” and “workplace harassment.”
• A statement encouraging workers to report incidents of workplace violence or workplace harassment.
• Contact information of who to file reports to.
• Contact information for additional support programs such as health and safety representatives or employee support programs, if applicable.

Employers should also prepare policies promoting an inclusive workplace in accordance with human rights legislation, as some incidents of workplace harassment may be the result of discrimination. Policies promoting an inclusive workplace in accordance with human rights legislation may include:

• A list of protected grounds of discrimination in accordance with human rights legislation.
• Descriptions/examples of unacceptable behaviour.
• Training management on the content of the policies.
• Continuity in education to promote an inclusive work environment.

Employers must post the workplace violence and workplace harassment policy where easily accessible, such as a bulletin board in the lunchroom. If staff works remotely, employers should send periodic emails about the policies.

Additionally, employers must review the workplace violence and workplace harassment policy as often as possible, but at least once a year.

According to workplace health and safety legislation, employers must prepare workplace violence and workplace harassment programs. For example, in Ontario, a workplace violence program must include:

• Measures and procedures to control the risks identified likely to expose a worker to physical injury.
• Measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.
• Measures and procedures for workers to report incidents of workplace violence to the employer or supervisor.
• Details on how the employer will investigate and deal with incidents or complaints of workplace violence.

Separate from a workplace violence program, a workplace harassment program in Ontario must include:

• Measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor, and to another person if the employer or supervisor is the alleged harasser.
• How incidents or complaints of workplace harassment will be investigated and dealt with.
• That information surrounding a harassment incident won’t be disclosed unless absolutely necessary.
• How certain workers will be informed of the results of the investigation and of any corrective action.

If in the event an employee makes a complaint about workplace violence or workplace harassment, you as the employer must have a plan to handle the complaint. Also, employers must keep the investigation and any reports resulting from the investigation confidential.

Get Advice on Workplace Harassment with BrightHR

As an employer, it is important to establish, maintain, and review workplace policies and programs with respect to workplace violence and workplace harassment.

If you fail to address or ignore situations of workplace violence or workplace harassment, you may be at risk of large fines, and in some cases, human rights complaints.

If you need assistance with drafting workplace violence and harassment policies and programs, or even looking to update current ones, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.