What legally constitutes sexual harassment?

How much do you really know about sexual abuse in the workplace?

What legally constitutes sexual harassment?

What is sexual harassment? The recent spate of allegations against employers, celebrities and media moguls made #MeToo, and sexual harassment in general, the talk of the office.

But in this new world of lawsuits and uncertainty, how confidentially can you say you fully understand what constitutes sexual harassment in the workplace?

We spoke to Alix P. Herber, partner at Fasken LLP, who laid down the definition, and what it means for employers who choose to flaunt the rules. 

“Generally speaking, there are two forms of sexual harassment,” explained Herber. “The first is powerplay; which is what we call ‘quid pro quo’. This is when someone in authority tries to elicit sexual favors for some kind of career promotion or opportunity. The other one concerns a toxic work environment, when someone sexualizes the work space by making sexual remarks or comments or engages in inappropriate contact.”

But with complex issues such as this one, are there any grey areas that employers need to be mindful of? Well, according to Herber, there are very clear definitions of what does and does not constitute sexual harassment -  and clear consequences for wayward employers.

“The definition is that it is engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome,” she told us. “It doesn’t matter whether the person intended the behavior to be unwelcome - the courts here say that as long as the conduct is unwelcome the fact that it wasn’t intended to be so is irrelevant. They hold you to the standard of an objective person; i.e. would an objective person know that this kind of conduct would be unwelcome in the workplace?”

It could be a hug, it could be an arm around an employee dragging them into a photo with co-workers. It could be someone commenting about an employee’s hair or clothing – these kinds of commentary in the workplace are simply not acceptable.

So, what advice does Herber have for employer looking to prevent potential lawsuits? A combination of common sense and training.

“First of all, you need to have proper policies and procedures in place that clearly set out the expectation in the workplace, with respect  to how employees should conduct themselves in the work environment,” she told us.

“Secondly, employers should consider training. Training can help inform your employee base to better understand how their comments or actions could make a colleague feel uncomfortable. So, whilst an employee and their buddy might be fine at work joking around about a ‘hot’ colleague; consider if your brother or sister was listening to that commentary and how it would make them feel. Ask yourself if you could be okay with your loved one being subjected to those types of comments. Most importantly, think about how you can change your comments and behavior to make everyone feel more welcome at work.

Sexual harassment sometimes leads to employee dismissal – but are you technically allowed to give a former worker a negative reference? Find out the answer here.


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