Sexual harassment and Valentine’s Day

February 14, 2018 Lisa Stam, Spring Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Privacy and Security, Recruiting and Hiring, Training and Development

This Valentine’s Day, keep in mind some tips on sexual harassment to help you make the right choice if you want to ask your co-worker to be your Valentine.

By now everyone should know that sexual harassment is not permissible in the workplace, but even amidst the flurry of allegations we have seen in the #metoo era, exactly what constitutes sexual harassment might still be a little fuzzy. With love in the air today, workers across the land might be wondering, can I ask my co-worker to be my Valentine? In today’s post we will take a closer look at the law around sexual harassment and try to answer that burning question.

Section 10 of the Human Rights Code

The Ontario Human Rights Code defines harassment in section 10 as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

This definition creates a hybrid subjective and objective test for what will constitute harassment. The harasser’s own knowledge is considered (subjective) as well as what would be reasonably known (objective). Harassment on the basis of the protected ground of sex would be considered sexual harassment.

What about consenting adult relationships?

So if I think that my co-worker has been sending me green light signals and so would a reasonable person, I might be okay. However, the analysis does not stop there. While there is nothing illegal or objectively wrong with a workplace romance between two consenting adults, it’s rarely that simple.

Facebook and Google have both been in the news lately for their takes on the office romance issue. Both companies are reported to have office dating policies specifying that employees will only be permitted to ask a co-worker for a date ONE time. If the propositioning employee is turned down, they are not permitted to ask again. If the answer is ambiguous, they are to take it as a NO. These policies also have mandatory date reporting requirements and prohibitions on dating where there is a conflict of interest, for example dating a direct report.

Power imbalances

Section 7(3)(a) of the Human Rights Code establishes an individual’s right to be free from unwelcome sexual advances or solicitations from a person in a position to grant or deny a benefit. This would generally be someone in a position of authority, but not necessarily. For example, even if my co-worker and I have the same level of position, if I have been in the position longer and my co-worker relies on me for information and guidance in the workplace, I may be seen as being in a position to grant or deny a benefit.

In situations where there is power imbalance, it is safe to say that one should never risk making a sexual advance, or asking a subordinate on a date. This is because the power imbalance makes it such that the less powerful individual cannot truly ever be seen to be giving consent freely, regardless of the genders involved.

Asking for a date

So if my co-worker is objectively sending positive signs, such that a reasonable person would think a (very polite, respectful, mild and non-physical) advance would not be unwelcome, and I am not in any way in a position to grant or deny a workplace benefit, then it may be safe to ask them to be my Valentine.

The next question to consider will be the type of outing request itself. Asking them if they’d like to accompany you to the Vagina Monologues might be a nice idea but certainly a step further than a coffee after work. Those green light signals need to be pretty clear. Just because a person does not openly communicate their distaste for a comment or behaviour, does not mean the actor can interpret it as not unwanted.

Examples of sexual harassment

The Ontario Human Rights Commission provides us with a long list of what activities may be sexual harassment including:

Demanding hugs
Unnecessary physical contact
Sex-specific derogatory comments or language (towards men or women)
Displaying or circulating sexual images
Propositions of physical intimacy
Demanding dates
Sexual questions or discussion
Requiring an employee to dress in a sexualized or gender-specific way

The employer’s role

Employers too need to be aware of the sexual tensions at play in an office, or risk being held liable for failing to address a poisoned work environment. For example, if two co-workers had a relationship and then broke up, and one is now showing revealing photos of the other around the office, this likely creates a poisoned work environment for the depicted employee. Though a manager may be tempted to deem the matter personal, the employer has an obligation to protect the employee.

The Ontario Occupational Health and Safety Act establishes standards for safe and healthy work environments. As under the Human Rights Code, under OHSA employers have obligations to prevent and address sexual harassment. Employers can protect themselves and their employees from sexual harassment with appropriate policies, training and complaint and investigation procedures.

No one ever said love would be easy.

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Lisa Stam, Spring Law

Founder of Spring Law, Employment and Labour Lawyer at Spring Law

Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technology in the workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media and technology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.