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‘Sexting’ becoming a problem in the workplace

blackberryWhat prompts a supervisor or worker to send a co-worker inappropriate text messages? In British Columbia, sexually charged messages in the workplace have led to trouble for employers. What do employers need to know so they can avoid being on the hook for sexual harassment?

In two recent cases, set out here and here, the BC Human Rights Tribunal confirmed that when the female employees were continually sent sexual text messages by a supervisor or co-worker, the female employees were indeed sexually harassed. The employers in both cases were held liable for not handling the situation properly. In one case, the employer terminated the employee who was sexually harassed. In another, the employer replaced the harassed female employee after she took a stress leave as a result of the harassment.

The employers were held liable because they did not meet their responsibility to ensure a workplace free of (sexual) harassment and they did not uphold the terms and conditions of the employees’ employment.

What can employers do to avoid this outcome?

First, it is important to understand what sexual harassment means. It occurs when someone is subjected (often repeatedly) to unwelcome sexual or gender related remarks and gestures, including:

  • Engaging in inappropriate touching
  • Making offensive jokes or remarks about women or men
  • Making sexual requests or suggestions
  • Staring or making unwelcome comments about someone’s body
  • Displaying sexually offensive pictures
  • Engaging in verbal abuse involving someone because of gender

Sexual harassment occurs most often to women, but it can also happen to men and between members of the same sex.

Employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment. Employers must also, after consulting with affected employees or their representatives, if any, issue a policy statement concerning sexual harassment and train all under the employer’s direction about the policy statement.

Employers should be proactive in preventing sexual harassment in the workplace by using the following recommended practices:

  • Issue a strong policy statement that defines and condemns harassing behaviour
  • Inform all employees about the policy and their rights under the policy
  • Develop a complaint procedure, which includes management’s response to investigating a complaint
  • Spend extra time training managers and supervisors about sexual harassment, and inform them of their responsibilities
  • Discipline managers and employees involved in sexual harassment
  • Keep thorough records of complaints, investigations and actions taken
  • Publish the policy annually
  • Monitor and tour the premises to ensure that sexually explicit material is not displayed in the workplace

As can be seen in the cases mentioned above, it would have been beneficial for the employers to have anti-discrimination and anti-harassment policies in the workplace. It is recommended that employers have these policies, train all staff about the policies and make clear the consequences of not complying with the policies.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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