Sexual harassment in the workplace is a serious issue and for women in particular. It is against the law. In Nova Scotia, more than one-third of women have faced unwanted sexual behaviour at work, which is about twice as common as for men. We also know that workplace sexual harassment is significantly underreported.
- Workplace sexual harassment can be traumatic. Sexual harassment is a form of gendered violence, and it is an expression of power and control which may make you feel powerless, hurt, uncomfortable, vulnerable, unsafe, angry, or confused.
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The following legal information is intended for people who have experienced workplace sexual harassment, and for supporting colleagues and friends. It explains the law and options available for dealing with workplace sexual harassment.
What is sexual harassment?
Sexual harassment is a broad term that includes physical and verbal behaviours that are sexual and degrading in nature.
Sexual harassment can occur in many different contexts and take many forms. Some common forms of sexual harassment include street harassment (often referred to as “catcalling”), online sexual harassment (for example, over social media), and workplace sexual harassment.
Sexual harassment may involve:
- unwelcome comments about someone’s body or their sexuality
- unwanted touching or sexual assault
- sexual propositions
- sexist jokes and language
- demanding dates or sexual favours
- the display of sexual images (such as pornography) where others can see
- demeaning and sexually explicit bragging (what is often called “locker room talk”)
- intrusive questions about someone’s gender identity or body parts
- sexually suggestive gestures or looks
- sending someone unwanted sexual images, text messages, or emails
- using sexist, transphobic, biphobic, or homophobic language, or any other behaviour that targets someone’s gender identity or sexuality
These are only some examples of harassing behaviour. Sexual harassment can involve any behaviour that is sexual in nature, is enacted without consent, and that causes distress or offence to those who are exposed to it.
These kinds of behaviours do not need to be targeted at a particular person to be considered sexual harassment under the law. For example, if you hear a coworker making sexist jokes or if you are exposed to sexual images on a coworker’s computer, you are within your right to raise concerns about this behaviour. You may not be the only one who is made to feel uncomfortable by this behaviour. It is reasonable to expect a workplace that feels safe and is free from sexual harassment.
Who experiences sexual harassment?
Most people who experience sexual harassment are women. Most perpetrators of sexual harassment are men. However, sexual harassment can and does impact people of all genders, including women, men, non-binary, genderqueer, and other gender diverse people.
43% of Canadian women and 12% of Canadian men say they have experienced workplace sexual harassment.
Statistics are not currently available that show numbers for non-binary and other gender diverse people. However, we can know from stories shared with us and from studies carried out in other regions that the percentages are likely high. Since sexual harassment is an expression of power, it is usually targeted at the people in our society who have the least power and are the most vulnerable, such as gender minorities.
It is important to note that sexual harassment is underreported, and so in reality the statistics cited above may in fact be much higher.
Why does sexual harassment happen?
It is important to recognize that sexual harassment is an expression of power rather than desire.
Harassers are usually people who (either subconsciously or consciously) want to exert control and dominance, and they do so by objectifying and demeaning others.
Since sexual harassment is about power, it is often directed toward people in vulnerable positions and people who are marginalized in some way. Women (both cisgender women and trans women) and non-binary people are more likely than men to be the objects of sexual harassment. But anyone across the gender spectrum can experience sexual harassment.
People of different genders may be impacted by sexual harassment in different ways. Research shows that cisgender women, trans, and non-binary people disproportionately experience sexual assault, sexual abuse, and sexual objectification. Many of these people have likely experienced gender-based discrimination throughout their lives.
Since gendered violence and abuse are so common, this means that sexual harassment may bring back traumatic memories from past experiences. This may include feelings of being unsafe, feelings of shame, and feelings of powerlessness. If this is your experience, you are not alone. Your emotions are not irrational, whatever they may be. On the contrary, your emotions may be your mind and body's way of telling you that your current situation is unsafe for you and needs to change.
You have every right to want a workplace that allows you to feel both emotionally and physically safe.
In addition to gender, other characteristics (such as race, disability, immigration status, class, gender identity, and sexual orientation) can also impact and worsen someone’s experience of sexual harassment. Remember that sexual harassment is about power, and so vulnerable, marginalized people are more likely to experience it at greater rates than people who have power and privilege.
Here are some common reasons that sexual harassment happens:
Power– Sexual harassment is often about someone’s desire to exert control over another person. For example, sexual harassment may involve demeaning comments about someone’s body that are intended to make that person feel small or like an outsider. Gender norms often inform this desire to have power over others. For example, a male employee might feel pressured by other men in the workplace to make comments about women as if women are objects to be looked at and enjoyed rather than human beings who should be valued and respected.
Gender norms and stereotypes – Sexual harassment sometimes comes from the desire to maintain gender norms. For example, someone who does not accept the fact that there are genders outside the traditional gender binary and might engage in behaviour which reinforces the gender binary. This means people who are out as trans or non-binary might be subjected to intrusive and uncomfortable questions about “what gender they are” or “what parts they have.” These kinds of comments are not appropriate and could be considered sexual harassment under the law.
The idea that someone “doesn’t belong”– This can be a common feeling in some industries which are still male dominated. For example, a woman working on a construction site might be subjected to whistles and sexually suggestive comments from her male coworkers. These kinds of comments and behaviours become a way to show women that they are still seen as outsiders and that they don’t fit in with the dominant masculine culture of the workplace.
Racist stereotypes and ideas – Sexual harassment often overlaps and is informed by other kinds of discrimination. For example, it’s common for Black and Aboriginal women who experience sexual harassment to be subjected to comments that suggest that their bodies and sexuality are somehow “exotic.” These kinds of comments draw on a problematic history of exoticizing racialized women, and they are never appropriate.
These are only some of the common motivating factors behind sexual harassment. Harassers may be influenced by various other factors, such as urge to control, a desire to fit in with others, and a lack of understanding about what is appropriate and reasonable workplace behaviour.
Whatever motivating factors may exist, the bottom line is that workplace sexual harassment is never okay. No one ever invites or desires sexual harassment, and no one should have to put up with behaviours that make them feel unsafe.
Why do so many people choose not to report sexual harassment?
Sexual harassment is significantly underreported. Many people who experience workplace sexual harassment choose not to report their concerns to management, a Human Resources representative, their union, or an external agency such as a Human Rights Commission.
There are many reasons for this underreporting.
Some people are worried that reporting sexual harassment could affect their career, their work relationships, and how they are regarded by their coworkers. Because of traditional gender roles, women especially are conditioned not to “rock the boat” and instead to put up with troubling behaviour.
In some industries and workplaces, people who experience sexual harassment may feel like they have no right to complain because sexual harassment is regarded as a hazard of the job. This includes environments such as bars and restaurants where wait staff are sometimes expected to put up with sexual harassment from customers. This attitude is particularly common in some workplaces in the service industry where women are expected to wear sexualized clothing such as short skirts and form-fitting uniforms.
The truth is that sexual harassment is never acceptable in any work environment. It does not matter if you work in an environment where harassment has become normalized. It does not matter if the harassment comes from a coworker or a customer. You have a right to work in an environment where you are treated with respect. You do not have to put up with sexual comments and behaviours, and management should have a clear policy and process in place for responding to complaints of sexual harassment by staff, customers, and clients.
There are numerous other reasons as well that people who experience or have been affected by sexual harassment choose not to report it. Some people choose not to report because they have legitimate concerns about their psychological or physical safety. For example, an individual may have to work closely with their harasser and may fear that the behaviour will worsen or escalate to violence if they come forward with their concerns.
If you have immediate concerns about your physical safety and you do not have faith in your employer to take timely and appropriate steps to protect you from someone who could become violent, you may wish to contact the police. Your safety is always essential.
Myths about sexual harassment
You may have heard of the concept of “rape myths” in discussions about sexual violence. “Rape myths” are harmful and commonly held beliefs that present barriers to a person reporting sexual assault. You can learn more about rape myths and how we can challenge rape culture here: https://breakthesilencens.ca/what-is-sexual-violence
As with these “rape myths,” there are also many myths about sexual harassment. As with sexual violence, many of these myths become barriers to people reporting sexual harassment. For example, if there is an attitude at work that an employee is somehow inviting harassment or “asking for it” because of the way they dress or look, then that person may not feel safe to report the harassing behaviour to management.
Here are some common myths about sexual harassment, and reasons why these myths are not true:
The idea that jokes aren’t harassment.
What is funny to one person may be deeply upsetting to another. Just because someone laughs at a joke or seems to be “in on the joke” does not mean that this person finds it funny. In fact, someone may not be comfortable expressing that a joke makes them uncomfortable.
It is also important to understand the gender dynamics at play in this kind of scenario. Women in particular are socialized to be pleasing and non-confrontational in their social interactions. Many women are also used to having their concerns about safety and well-being dismissed or trivialized, particularly in male-dominated spaces. These dynamics mean that many women will not feel comfortable speaking back or saying no to a sexually suggestive comment or joke.
It is important to understand that laughing or smiling awkwardly are often knee-jerk reactions to sexual harassment. If someone doesn't express their discomfort with a sexual joke, this does NOT mean that they are okay with this behaviour.
Don't be hard on yourself if you've laughed or smiled at a sexual comment that made you uncomfortable. Many women, trans, and non-binary people may respond in this way because they are worried about their safety, the impact on their work relationships, or their future in the organization if they protest.
Examples of inappropriate “jokes” and behaviours include:
- Sexually suggestive photos on screensavers or calendars
- Jokes about gender, age, race, nationality, or religion
- Jokes about someone's relationship status
- Making excuses for a harasser by saying that inappropriate jokes are “just their way” or that they are “a product of their time.” We all have the capacity to understand how and why these kind of behaviours are harmful, and we all deserve better.
The idea that a person’s appearance or behaviour can be a sign that they don’t mind sexually suggestive comments.
There is a common misconception that people, and women in particular, invite comments about their appearance by dressing up or putting on makeup. These kinds of attitudes are particularly common in some industries, such as the service industry, where women are all too often subjected to unwanted sexual comments about their physical appearance by customers.
No one is ever inviting harassment by wearing a uniform or particular clothing, smiling, or engaging in conversation. No one invites or deserves sexual harassment in any context. Everyone has a right to a workplace that is safe and free of discrimination, and this includes freedom from unwelcome sexual behaviours and inappropriate comments.
The idea that sexual harassment only happens in certain industries or workplaces
This is not true. Sexual harassment occurs in all industries and workplaces, including offices, restaurants, construction sites, and countless others.
Some industries and professions have been traditionally dominated by one gender, and so in these situations sexual harassment may be more common than in others. Sexual harassment and comments about gender are sometimes used to make someone feel like an outsider. For example, comments about an employee's gender may be used by others to make them feel unwelcome in a traditionally gendered industry like law enforcement or teaching.
While sexual harassment may be more common in some kinds of workplaces, it is important to understand and appreciate that sexual harassment can and does happen in any and all workplaces. In fact, health occupations and unionized jobs have the highest reported rates of workplace harassment. At the end of the day, no matter where you work, you deserve a workplace where sexual harassment is not tolerated in any form.
The idea that addressing sexual harassment in the workplace will be too expensive or burdensome for your employer
Some people are reluctant to report their experience of sexual harassment because they fear that their complaint will be a burden or will be an expensive process for their employer. This is not true. In fact, workplaces that address sexual harassment complaints in a timely and appropriate manner become less likely to experience financial hardship and other complications.
When employees experience harassment, workplaces face financial losses due to decreased productivity and morale, and high turnover rates.
Your employer should take your concerns seriously if you report sexual harassment. Appropriate attention to this serious issue will mean it is much less likely that the workplace will experience any financial hardship, low employee morale, or other complications. Fostering a workplace that is safe and free from discrimination benefits everyone in that workplace, including management, employees, and any customers or clients served by the organization.
Remember that you, and everyone around you, have a right to work in an environment that is safe, respectful, welcoming of diversity, and free from discrimination and harassment.
Can I get in trouble with my employer for reporting sexual harassment?
No. It is illegal to retaliate against someone for filing a sexual harassment complaint. This means that if you brought your concerns forward to your employer or filed a human rights complaint, your employer cannot penalize you in any way for doing so.
Your employer is not allowed to demote you, harass you further, terminate your employment, or engage in any other kind of behaviour aimed at punishing you for complaining about sexual harassment. The same is true for any coworker who provides evidence or supports you in your sexual harassment complaint. Under the law, this person also cannot be penalized.
Your employer has an obligation to take sexual harassment complaints seriously and respond in an appropriate manner. This may include talking to you and others who have information about what has happened. It may also mean taking immediate steps such as separating you from the person allegedly harassing you while an internal investigation takes place.
If you feel that your employer is retaliating against you for reporting sexual harassment, you may wish to contact the Human Rights Commission to discuss options for filing a complaint.
What are the impacts of sexual harassment?
Sexual harassment can significantly impact lives and careers. Workplace sexual harassment can make people feel unsafe, can hinder mental health, and can harm work relationships. Sexual harassment can also result in people leaving their jobs, particularly if they do not feel safe or supported after bringing their concerns to their employer’s attention.
Following the #MeToo movement, there is an increasing global awareness that sexual harassment is a common and damaging experience for many people. During #MeToo many people, particularly women, came forward and shared their stories of workplace sexual harassment and violence. Many women shared stories of pain, humiliation, and degradation.
Some women shared that they left promising careers because their experience of workplace sexual harassment destroyed their trust and sense of security. Others shared stories about not being believed or taken seriously. Some shared stories about harassment that escalated to violence.
These stories (as well as numerous other stories, research, and academic studies) confirm that sexual harassment has the potential to have serious and long-lasting impacts on peoples lives and their sense of well being.
Harm to Mental and Physical Health
Sexual harassment can result in depression, anxiety, and other harms to mental health. The stresses caused by sexual harassment can also result in deteriorated physical health, decreased productivity, and poor workplace morale.
Negative Impact on Career
Sexual harassment can result in a person becoming disengaged and unhappy in their job. A person who is normally outgoing and social in the workplace may become detached and disinterested, which may have an impact on how they interact with others.
Studies have shown that sexual harassment can result in career setbacks – for example, having to take prolonged time off work or leave a job entirely, or being perceived as “rocking the boat” or “causing trouble” at work and so not given fair opportunities for advancement.
Sexual harassment may also result in financial hardship for people who have experienced or been affected by it. Some people leave jobs or cut back their hours to avoid being in an environment with their harasser.
It is important to bear in mind that many people who have experienced or been affected by sexual harassment are people who are already vulnerable in some way. This means that financial hardship and other consequences may have a more serious impact than it has on others who are in more of a position of privilege.
For example, some groups who are more susceptible to workplace sexual harassment include single mothers, women in precarious employment situations (such as Temporary Foreign Workers), trans and non-binary people, and people who rely on multiple part time jobs to get by.
These individuals may be more hesitant to stand up to sexual harassment, because they rely on their jobs for immigration purposes, to support their family, for day-to-day living expenses, and for many other reasons. Many people feel hesitant to report harassment for fear that it will jeopardize their ability to have access to the basics in life. No one should ever have to feel this way. Under the law, your employer has an obligation to take sexual harassment seriously and take steps to provide a safe environment for all of its workers.
Negative Impact on Family, Friends, and Community
Sometimes people who have experienced or been affected by workplace sexual harassment feel like they need to put up with the harassment in order to keep a job that helps them support their children and family.
In cases such as this (and indeed, likely in many instances of sexual harassment), the harassment can have much further reaching consequences than just the individual. An individuals family, friends, and community will likely feel the impact of the emotional weight and stress that their loved one is carrying due to the harassment that is happening at work.
Poisoned Work Environment
In some instances, sexual harassment contributes to a toxic work environment and to the breakdown of relationships between coworkers.
People who experience workplace sexual harassment may lose trust in management for failing to respond to the sexual harassment in a meaningful way, or failing to respond at all. The same may be true of coworkers who are aware of the sexual harassment and are also disappointed by the failure of management to address the issue.
Workplace sexual harassment may result in poor attendance, decreased morale in the workplace, and high staff turnover. If management allows sexual harassment to continue in the workplace, staff may feel like the employer does not respect them and so may seek employment elsewhere.
A workplace that is free from sexual harassment is a workplace that benefits everyone. We all deserve a work environment where we can thrive and be our best selves.
What is the difference between sexual harassment and sexual violence?
Sexual violence is a broad term that includes unwanted sexual behaviours that are physically aggressive, coercive, and committed without consent. Sexual violence is also known by terms such as rape, sexual assault, and sexual abuse.
Sexual harassment may involve some component of sexual violence, such as unwanted touching. If this happens to you in the workplace, your employer should respond promptly and proactively, because it is a matter of your physical safety and potentially the safety of others around you.
For a better understanding of sexual violence, and for resources available to survivors of sexual violence, please visit http://breakthesilencens.ca/what-is-sexual-violence
Sexual harassment is often regarded as a less serious issue than sexual violence, but sexual harassment can have as serious an impact as sexual violence.
Both sexual harassment and sexual violence are about exerting power over another person, and both are against the law. When people think of these two concepts as different this may be in part because sexual harassment, while against the law, is not a criminal offence in Canada, whereas sexual violence may result in criminal charges.
Many instances of sexual harassment solely involve verbal rather than physical behaviours, and so for this reason is commonly seen as less harmful than sexual violence. This is a common belief that we have all been taught that “sticks and stones will break my bones but words will never hurt me.” However, studies have shown that verbal sexual harassment often escalates into other forms of sexual violence, such as sexual assault.
It is important to acknowledge that the harm caused by sexual harassment is as worthy of attention as the harm caused by physical assault or aggression. Sexual harassment can have a serious, long-lasting impact on a person’s life. Workplace sexual harassment can poison an environment and harm relationships with coworkers, clients, and others.
Studies have shown that those who experience sexual harassment in the workplace can have a similar range of symptoms as those that result from sexual violence, including:
- depression and anxiety
- feelings of vulnerability
- hypervigilance (a constant fear of being unsafe)
- tension held in the body
- deteriorated physical health
- trouble sleeping and constant worry
- difficulty trusting others
- and many other symptoms and experiences that are unique to the person.
Sexual harassment may also bring up past trauma. Given the high rates of sexual violence in Canada, workplace sexual harassment may trigger traumatic memories and feelings. For example, in Canada, statistics tell us that 1 in 3 women will experience sexual violence in her lifetime.
It is important to bear this point in mind in order to thoroughly understand how and why workplace sexual harassment impacts people in different ways. Those who have already survived some kind of sexual trauma may be more strongly impacted by the experience of workplace sexual harassment.
Remember that no matter what your past experiences have been, you deserve to have a workplace that feels safe and free from discrimination.
What does the law say about workplace sexual harassment?
Workplace sexual harassment is against the law in Canada and is considered a form of discrimination.
Your employer has a legal obligation to provide a workplace environment that is free of sexual harassment. This means that it is your employer’s responsibility to take meaningful steps to address sexual harassment when they become aware of it.
Both the Nova Scotia Human Rights Act and the Canadian Human Rights Act forbid workplace sexual harassment. This means that no matter what kind of organization you work in Nova Scotia, you have a right to a workplace that is free of sexual harassment.
The Nova Scotia Human Rights Act applies to provincially regulated workplaces (such as shops and services, most office jobs, restaurants, and many others), and the Canadian Human Rights Act applies to federally regulated workplaces (such as banks, telecommunication agencies, most airport businesses, among others).
If you are not certain if your workplace falls under the federal or provincial jurisdiction, you can contact either the Nova Scotia Human Rights Commission or the federal Human Rights Commission, and they can direct you to the correct agency.
Sexual harassment and the Charter of Rights and Freedoms
The Charter of Rights and Freedoms guarantees the right of everyone in Canada to be treated equally, without discrimination based on protected characteristics. These characteristics are:
- national or ethnic origin
- mental or physical disability.
This means that all government services and policies must treat people equally. If a worker is employed by the government, the Charter also protects that worker from discrimination. This includes health care workers, public school teachers, military personnel, and private companies acting on behalf of the government.
The Supreme Court of Canada has also recognized that sexual assault and sexual harassment are forms of discrimination based on sex and gender.
What do Canadian courts say about workplace sexual harassment?
Canadian courts have clearly said that sexual harassment is illegal even if a harasser did not mean to harm anyone. Discrimination is about the impact on the person who is harassed, not the intention of the harasser or the employer. Here are some examples of important court decisions on these issues:
- O’Malley v. Simpsons-Sears Ltd.
Theresa O’Malley was an employee of Simpson-Sears Ltd. She was required to work on days that conflicted with her religion’s observance of the Sabbath. When she refused, she was fired. The Supreme Court of Canada decided that Simpson-Sears Ltd. did not intend to discriminate against Ms. O’Malley, but that its intention did not matter. Simpson-Sears Ltd. could have scheduled Ms. O’Malley for other workdays without major time or expense. Although this case is about religious discrimination, it applies to all forms of discrimination in a workplace. It is the effect of an action that determines whether discrimination has occurred.
- Janzen v. Platy Enterprises Ltd.
Diana Janzen was a waitress at a restaurant owned by Platy Enterprises Ltd. While at work, another employee touched her without her consent and made sexual comments. Ms. Janzen’s manager did nothing to help her, and Ms. Janzen quit her job. Another female waitress complained about similar treatment and was fired. The restaurant owner argued that Ms. Janzen was not harassed because not all women in the workplace were targeted. The Supreme Court of Canada rejected this argument. Any behaviour or attitude that limits a person’s employment opportunities because of their gender is harassment.
- North Vancouver School Dist. No. 44 v. Jubran
While attending a public high school, Azmi Jubran was bullied by other students, who used homophobic slurs. Mr. Jubran filed a human rights complaint against the school district because teachers and staff failed to protect him. The school district argued that Mr. Jubran was not harassed because of his sexual orientation, since he did not identify as gay and the other students did not necessarily believe he was gay. The British Columbia Court of Appeal did not agree. The effect of the harassment was that Mr. Jubran’s ability to pursue his education was affected. Harassment on the basis of a protected characteristic is discrimination, regardless of how the victim identifies.
What should I do if I see or experience sexual harassment in the workplace?
Everyone has the right to a workplace that feels safe and is free of sexual comments and behaviours. It is the employer’s responsibility to provide this safe environment as much as it is reasonably possible. However, in order to do so, your employer must first know about the harassment.
Here are some steps you can take if you’ve experienced sexual harassment in the workplace:
- Speak to management about the issue.
Throughout these questions and answers, we have stressed the importance of letting a manager, supervisor, or Human Resources representative know if you are experiencing workplace sexual harassment. This may seem obvious, but it is an important first step. Your employer cannot take action to protect you unless they know what is happening.
Speak to a Human Resources person (if your workplace has one) or your direct supervisor or manager. If this feels intimidating, you might try first speaking to a trusted coworker. You could also ask this coworker to be with you as a support person when you bring your concerns to management.
- Speak to your union representative (if applicable)
If you work in a unionized environment, you should contact your union representative. Your Collective Agreement likely includes provisions about workplace harassment and discrimination.
Your union representative can give you guidance on what to do next. An informal resolution may be possible through a conversation between you, your employer, and your union representative. If not, your representative can guide you through the grievance process.
There is no one-size-fits all process for how a union will respond to complaints of this nature, so be sure to ask your union representative lots of questions so that you can fully understand what happens next. You may wish to ask about the timeline (i.e. how long it might take to investigate and resolve your complaint). You may also wish to discuss expectations about privacy (i.e. best practices to ensure that your complaint is handled with discretion, so that not everyone in the workplace hears about what has occurred).
- Find out if your employer has a current anti-harassment policy in place.
Ask to see your employer’s policy on workplace sexual harassment. Many employers have a written policy regarding sexual harassment and other forms of discrimination. This policy will give you an idea of how your employer handles sexual harassment complaints and what the next steps will be in addressing the issue.
If your employer does not have a sexual harassment policy, you can direct them to the free online training on sexual harassment for employers developed by the Nova Scotia Human Rights Commission, if you feel comfortable doing so. This training includes a downloadable sexual harassment policy template that employers can tailor to their own workplace.
It is important for all workplaces to have a sexual harassment policy so that issues and complaints of this nature can be dealt with in a fair, consistent, and timely manner when they arise.
- Document your experience.
If you have experienced sexual harassment in the workplace, you should create a paper trail. For example, if you have received sexual messages or images from a coworker, save these and put them somewhere for safekeeping. You can also make a note of the date of the harassment and other details such as who was present and where the harassment occurred.
It may seem counterintuitive to think about keeping documentation or images that are potentially upsetting and triggering. You may be inclined to delete a message or image of this nature, and it is understandable that you would feel this way. But it is important to hold onto this information. You may need to rely on it at a later date if there is an internal investigation or if you file a complaint with an external agency (such as a human rights complaint).
If you request a meeting with a manager to address your concerns, you may wish to do so in writing. It is also useful to send a follow-up email after meeting with a superior in order to make a note of what you’ve discussed. This creates helpful documentation of the fact that you have taken steps to address the problem with management. This documentation may come in handy if your employer does not then take appropriate steps to stop the sexual harassment.
What if talking to my manager or union rep doesn’t work?
A person who experiences sexual harassment at work can file a complaint with the Nova Scotia Human Rights Commission. This must be done within one year of the incident related to the complaint (or the most recent incident if there are more than one). If more than a year has passed, workers have two years from the time of the incident(s) to file a lawsuit in the Supreme Court of Nova Scotia.
If a coworker experiences sexual harassment, you can support them in either of these legal processes by directing them to information about their rights.
Nova Scotia Human Rights Commission
Speaking with a Human Rights Officer is the first step in the complaint process. If the complaint is within the Human Rights Commission's jurisdiction, the Human Rights Officer helps the complainant complete a complaint form. This can be done by phone or in person. The HRC will share the complaint information with the other person or organization named in the complaint so that person/organization can respond. Many complaints are resolved through a Resolution Conference. Here’s how it works:
- When a complaint is accepted, planning begins to bring all parties together. This can include anyone directly involved or affected by the dispute, including coworkers, family members, witnesses, support people, or whoever else may be deemed appropriate. The Commission may identify and bring additional people from the community who can contribute to the resolution of the complaint.
- All participants at the Resolution Conference may share their perspectives and talk about what matters to them.
- Often participants are able to create their own solution to the issue, and a settlement agreement is written to document this solution.
- If a resolution is not reached, information from the Resolution Conference may be used to make a recommendation to the Commissioners, who will decide the appropriate next steps.
- If there is a significant power imbalance or other concerns that would make a Resolution Conference inappropriate or potentially harmful to the person who filed the complaint, the HRC will look at other ways to handle the matter so that everyone involved can feel safe.
The two most common court claims relating to sexual harassment in the workplace are:
- that a worker has suffered a tort (a wrongful action that causes harm), and/or
- that their Charter rights have been violated.
Sexual harassment may be considered by courts to cause the tort of infliction of mental suffering. This may be intentional (done on purpose) or negligent (caused through carelessness). When an employer fails to protect workers, they may be found legally responsible for negligence.
A court may determine that a coworker or employer is responsible for causing a worker’s mental suffering if the behaviour involved was:
- Beyond what the average Canadian would find acceptable,
- Intended or likely to cause emotional trauma, and
- Actually the cause of serious emotional distress.
If the Human Rights Commission or a court agrees that a worker has suffered serious emotional distress or that their Charter rights have been violated, they may offer a variety of remedies. These can include:
- Getting back wages you lost,
- Getting a reference letter if you had to quit your job,
- The employer agreeing to do more training on preventing and dealing with workplace harassment,
- Workplace transfer or getting a job back if you were fired,
- An apology, and
- Financial compensation for emotional pain and suffering.
What responsibility does my employer have to prevent or respond to sexual harassment?
All employers are legally required to provide a safe and respectful work environment.
Employers may be held responsible for any harm caused by their workers, whether the person who experienced that harm is a fellow workers, customers, or members of the public. An employer does not have to approve of a worker’s behaviour, or even be aware of it, to be legally responsible. This is because the law says that an employer should take all reasonable steps to know what its workers are doing and to prevent any harm that might be likely to happen as a result.
Employers are responsible for any harm caused by their policies and procedures, but they can also be responsible for any harm caused by failing to act. For example, not having any policies in place about harassment in the workplace may contribute to an environment where workers are likely to be harassed. Another common example is an employer’s failure to prevent harassment once a worker reports it to a direct supervisor or manager. Once someone in a position of authority is aware of the harassment, the employer must take steps to address it.
What if I am harassed by a client or customer?
If you have experienced sexual harassment from a coworker, customer, or client, you should let your superior know as soon as possible so that steps can be taken to address the problematic behaviour. This includes behaviour of people who come to your business but don’t work there, such as customers at a bar, clients at a law firm, or people having a meal at a restaurant.
Your direct superior may not be able to directly control or stop the behaviour of customers or clients. However, they can and should make it clear that sexual comments and behaviours toward staff will not be tolerated. For example, your employer can make it clear that the harasser must leave if the behaviour is severe in nature or if it continues after a first warning.
If your employer does not take steps to protect you from harassment, it may be legally responsible for failing to protect you.
What if my boss is the person harassing me?
Human rights law in Canada is clear that a person in a position of power (such as a manager or supervisor) cannot use their power to demand or expect sexual favours from employees or engage in any kind of unwanted sexual behaviour toward staff.
If your direct supervisor is the person harassing you, you have the option of speaking to the person above them, if there is such as person in your workplace (such as a General Manager, Human Resource Director, or business owner).
You may also contact the Human Rights Commission for guidance and options for what to do next.
If your boss, manager, or supervisor is sexually harassing you, you might feel like you need to put up with the behaviour, especially if this person is in a position to provide you with career incentives like a promotion or raise.
This is not true. No one should have to put up with sexual harassment in the workplace, and it is never appropriate for a superior to use their power in this manner.
How can we prevent sexual harassment in the workplace?
Harassment occurs when someone in a position of power uses that power to harm someone in a weaker position. The power may be formal (like a manager’s authority over other workers) or informal (like peer pressure).
Many workplaces already have policies and procedures in place to ensure physical safety and prevent accidents. It can be helpful to think about preventing harassment in the same way, by identifying potential issues and then addressing them through education and creating/enforcing policies and procedures.
We all know that if we see exposed wiring in the workplace, there is a risk of electrical shock. But when safety concerns are less obvious, they may be overlooked. Examples of safety issues that may lead to harassment in the workplace are:
- Biases – A bias is a strong preference or idea that is not based in actual fact or experience. An example of this is the idea that “men aren’t caring enough for nursing” or “millennials are all lazy” or “if a woman is dressed up, she must be looking for attention.”
- Harmful workplace culture – Workplace culture is the shared beliefs and attitudes of workers in a workplace. Warning signs of a workplace culture that may lead to harassment in the workplace include gossip or bullying and a lack of trust in management. A healthy workplace culture is one in which everyone feels respected and included. For example, does everyone in your workplace feel welcome in the lunch room? Do work events include people of all genders? Are managers open to hearing about issues in the workplace? Do work events include alcohol? (If so, your employer may wish to consider alcohol-free events for harm reduction purposes, and out of respect for some people's religious and cultural practices and beliefs.)
- Insufficient privacy/personal space – The amount of personal space that a person is comfortable with varies from person to person. There are also different cultural standards about personal space within Canada and around the world. It is impossible to know someone’s comfort level without asking them. This means that it is important to let someone know if your work requires that you stand/sit very close to them or touch them, and that you should always ask permission if at all possible.
Workplaces should also provide a space for workers who need privacy from time to time. This space might be used for making a personal phone call at break time or for breastfeeding workers who need to pump breast milk.
Free legal advice if you have been sexually harassed at work
If you have experienced or have been affected by workplace sexual harassment, you can get up to 4 hours of free legal advice. You might not know your rights or how the law works for you and for your employer. Your questions can be answered with this free confidential legal service.
Last updated March 2021