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‘Unwelcome behaviour’ in sexual harassment cases

My last blog post involved a real-life scenario that posed some challenging questions. In this follow up post, I will answer some of those questions.

First, let me remind you of one of the scenarios:

violence and harassment at workMaureen and Steve

Maureen and Steve work together in a downtown office setting. Maureen is new to the office and she and Steve hit it off from her very first day. One day, however, Steve made comments to her that crossed the line of respectful office banter. Maureen was visibly upset and did not attempt to hide her reaction from anybody.

Shortly after becoming co-workers, Maureen and Steve had quickly developed a rapport with each other that allowed for playful teasing back and forth. Their conversations were often of a sexual nature or included subtle sexual innuendo. One fateful day, Steve said to Maureen something to the effect of, “Your voluptuous breasts…” and Maureen became visibly upset.

Steve was instantly aware that his new office companion was deeply affected by what he said and approached her about it. Maureen explained to Steve that his comment was very personal and he should avoid future comments of a similar nature. Steve apologized and said although he was confused by what happened he would avoid such comment in the future.

Steve may have been left to wonder if he had committed sexual harassment.

Had he?

The Ontario Human Rights Code says this:

“Harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

The question for Steve in this scenario therefore is: did you know your actions were unwelcome at the time of the occurrence?

Karen, in her response to my last blog post, puts it succinctly: He would probably defend himself with the fact that they always went back and forth this way and can’t understand why this time is different…

Exactly! When he shared this story with me, the real person, whom I am calling Steve, defended himself with a very similar statement. He wondered why his comment to Maureen about her “voluptuous breasts” was unwelcome by her at that moment when earlier she had accepted similar comments without complaint.

However, unwelcome-ness is Maureen’s decision to make, not Steve’s. Maureen, however, has a duty to inform Steve that his behaviour is unwelcome, particularly in a situation where similar comments had previously been acceptable.

The test for the existence of “unwelcome behaviour” was explained in the case of Canada (Human Rights Commission) v. Canada (Armed Forces), [1999] 3 C.F. 653, which states, “the Tribunal will look at the complainant’s reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome.”

Maureen clearly told Steve, by her behaviour, that his behaviour was unwelcome at the time it occurred. From that moment on there was no doubt that Steve’s comments matched the judicial interpretation of “harassment”.

I told Steve during our conversation that his actions following the behaviour were exactly the right thing to do. Many workplace anti-harassment policies I have read encourage employees to approach co-workers who they believe are harassing them and ask them to stop. I would add, where a co-worker appears to be upset with you, approach that person and ask why. That’s exactly what Steve did in this situation. His actions resulted in a amicable resolution to this potentially volatile situation.

Learn Don’t Litigate: Remember that a conversation is the simplest form of mediation and may prevent a great deal of expensive and time-consuming litigation.

Here are some tips for reducing the incidence of harassment in your workplace:

  • Make it clear that the employer is committed to providing a harassment-free workplace
  • Conduct training that allows employees to interact with each other and raise their awareness level on the topic of harassment and human rights in general
  • Encourage an ongoing dialogue among employees and empower employees to talk to each other about behaviour they find abusive
  • Inform employees how to file a complaint if they feel they are being harassed
  • Respond to complaints quickly and efficiently

In two weeks, I will elaborate on the second scenario covered earlier: Morris and Everett.

Andrew Lawson
Learn Don’t Litigate

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate
Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more
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2 thoughts on “‘Unwelcome behaviour’ in sexual harassment cases
  • Andrew says:

    Great advice Dave. Having a “zero tolerance” policy about sexual banter is the best policy. Interestingly, in my work I have people complain that this type of policy “takes all the fun out of the workplace.” It’s all lots of fun until someone is affected negatively by the behaviour. You’re right–the best policy is to avoid conversations of a sexual nature at work (even if it does take all the fun out of the workplace)

  • Dave Quinn says:

    I agree totaly with the above topic. I also have a situation here that caused confusion. The female employee engaged in sexual banter with male employees. Her conversation was very sexually explicit. Yet there occured a situation where she reversed her stand saying that the conversation was not acceptable, whereas it was the day before. This totally confused the males involved. Why was it Ok yesterday but not today. Her reply was that SHE can decide what is or is not acceptable. I spoke to her and stated that we have a very clear guideline as to what is or is not acceptable. It is up to all employees to adhere to that guideline. She is required to follow the guidelines as much as the males are. Sexually oriented conversations are not permissable from any employee no matter their gender. Accepting it one day and not the next gives conflicting signals to the other member of the conversation. Better to follow standard guidelines and avoid confusion as to what is or is not permmissable.