Workplace Sexual Harassment FAQs

Whether something is workplace sexual harassment depends upon context so the list of disrespectful behaviours is not conclusive but includes:

• Quid pro quo – sexual favours for work favours
• Statements or gestures about a person’s body
• Statements/bragging about sexual prowess
• Purposeful misgendering or refusing to use a person’s preferred pronouns
• Derogatory gendered terms
• Sexualized images in the workplace
• Unwanted Touching
• Obvious leering or staring at a person
• Fixation on pregnancy or other sex specific functions
• Talking about how much a person loves another
• Criticizing a person because they don’t conform to gender stereotypes
• Sending people sexualized communications

A workplace includes the actual place where someone works but can be broader and include other places where the workplace relationship still applies.    So, “workplace” would include the actual place where you carry out your work, e.g. an office or job site, but it would probably also include travel for work or a training conference. Sexually inappropriate or disrespectful behaviour during that travel or training might very well constitute workplace sexual harassment.

Acts which clearly are not taking place for a work related purpose but where there is still an aspect of the workplace relationship in play  – such as work parties or sports teams made up of a group of employees  – have also been determined to be sexual harassment in the “workplace”.  It can also include acts which clearly are not happening in the workplace and make no reference to the workplace which carry with them the potential for workplace repercussions such as repeated after hours texts from a supervisor after its been made clear that the victim has no interest in communicating outside of work hours.  Whether or not something that takes outside of the site on which day to day work takes place is a worksite for the purpose of determining whether workplace sexual harassment took place will depend upon a  number of factors, the most important one being whether the work relationship between the harasser and the victim is still in play.

In Yukon, workplace sexual harassment is prohibited by several  laws.

The Human Rights Act, S.Y. 2002, c. 116  https://laws.yukon.ca/cms/images/LEGISLATION/PRINCIPAL/2002/2002-0116/2002-0116_1.pdf states at s. 14:

14 Harassment

(1) No person shall

(a) harass any individual or group by reference to a prohibited ground of discrimination;

(b) retaliate or threaten to retaliate against an individual who objects to the harassment.

(2) In subsection (1), “harass” means to engage in a course of vexatious conduct or to make a demand or a sexual solicitation or advance that one .

The prohibited grounds of discrimination referred to in subsection 14(1)(a) are listed at s. 7 of the Human Rights Act and include subsec.7(f) sex including pregnancy and pregnancy related conditions, (f.01) gender identity or gender expression and (g) sexual orientation.

So, sexual harassment, including workplace sexual harassment is prohibited by the Human Rights Act and may form the substance of a complaint under the Act.

The Canadian Human Rights Act, RSC, 1985, c H-6 https://laws-lois.justice.gc.ca/eng/acts/h-6/  which applies to activities in Yukon that fall under the regulatory power of the federal government, contains an equivalent prohibition against workplace sexual harassment, also at s. 14. 

The Yukon Occupational Health and Safety Regulations, O.I.C. 2020/121  https://laws.yukon.ca/cms/images/LEGISLATION/SUBORDINATE/2020/2020-0121/2020-0121_1.pdf classify harassment, including sexual harassment as a workplace hazard and obligates employers to have a policy relating to the prevention of injury in the workplace including the injury created by workplace sexual harassment.  The employer is also obligated to provide training to staff on the policy and on how to identify and report workplace hazards.  A failure to carry out those obligations is an offence under the regulations.

The Canada Labour Code RSC 1985, c. L-1 https://laws-lois.justice.gc.ca/eng/acts/l-2/  has provisions roughly equivalent to those in the Yukon Occupational Health and Safety Regulations and they apply to those working in jobs that are federally regulated.

Depending upon the nature of the harassment, s. 271 of the Criminal Code of Canada RSC 1985, c. C-46, https://laws-lois.justice.gc.ca/eng/acts/c-46/  which sets out the criminal offence of sexual assault may apply.  Section 272  of the Criminal Code relates to sexual assault with a weapon. If   a person is sexually assaulted in the course of sexual harassment, it can be reported to the RCMP.  The Sexual Assault Response Team which is operated by a coalition of Yukon service providers, offers 24/7 support and advice whether or not you wish to have the matter reported at the present time. You can also receive support from the Victim Services Branch of the Yukon’s Department of Justice which can support you in understanding the process behind a prosecution and in obtaining independent legal advice.

And although it is not strictly breaking a law, again, depending upon the circumstances of harassment, you may be able to bring a civil lawsuit against your harasser or your employer.  How a civil lawsuit might give rise to a claim against another in respect of workplace sexual harassment depends upon a number of circumstances including whether the victim’s employment was terminated or whether there is proof that the harassment was intentional and for the purpose of creating injury to the victim.  In some lawsuits which deal primarily with other employment issues, the fact that workplace sexual harassment occurred might increase damages awarded.

The Workplace Sexual Harassment Legal Clinic can help you understand what laws may have been broken and what your  options may be under any of these laws. It can also help you understand whether the facts of your case are such that it makes sense for you to bring a civil lawsuit against your harasser or your employer.

Sometimes, during a consensual relationship with another person in the workplace, acts and language that might otherwise be offensive or disrespectful are not unwelcome; being called “baby” by someone that you are in a relationship with, even at work, may not be unwelcome or offensive while being called “baby” by a supervisor or colleague is.  However, if the nature of the relationship changes and the other person is told that their acts or language are no longer welcome and they persist, it is harassment.  You are allowed to change your mind about whether or not an act or words are disrespectful or unwelcome.

There are a lot of myths.  Some are misconceptions about what harassing acts are and some are myths about people’s responses to workplace sexual harassment:

Myth #1 She didn’t say no and she didn’t go to HR so I thought it was okay

This is sometimes referred to as the “hue and cry” myth with harassers claiming that because their victim did not put up a fight or complain  – to the harasser or to some other person such as the employer or HR – they could not be expected to know that their behaviour was unacceptable.

This puts the onus for preventing harassment on the victim and has been explicitly rejected by courts (provide cite)

There are many reasons why a victim might not object or complain about harassing behaviour.  Those reasons can include:

• An inability to respond in the moment; harassment is traumatizing and many people freeze when it is happening to them
• A fear that complaining or objecting may have a negative effect on their ability to maintain or to work in their job or on their personal reputation
• An inability to process what is happening to them and
• not wanting to be defined as a victim   

Myth #2 It’s a display of romantic or sexual desire

Workplace Sexual Harassment is not romantic; it’s all about power and power differentials.  It is no different than other types of discriminatory harassment in the workplace – racial discrimination or discrimination on the basis of age, for example.  Courts, arbitrators and labour boards in Canada have consistently found that workplace sexual harassment is all about power.  In what is still one of the most important cases on workplace sexual harassment, Dickson J of the Supreme Court of Canada stated in Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 . 

It is, as . . . has been widely accepted by other adjudicators and academic commentators, an abuse of power.  When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power.  Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.

Myth #3 Women are always the victim

While victims of workplace sexual harassment are overwhelmingly women, harassment can and does happen to other genders and to other gender expressions. A 2020 Statistics Canada report found that nearly one-third (31%) of women in the three northern territories who were currently employed or had been employed at any time during the last year were directly targeted with at least one inappropriate sexual behaviour in the workplace. The rate amongst men was half that (16%).

The rate of harassment is even higher for LGBTQ2S+ persons in the North.  The same study reported that LGBTQ2+ people were more likely to have been subjected to inappropriate sexual behaviour in the workplace. For example, 54% of LGBTQ2+ women were targets of such behaviours.

Who gets harassed?

• As mentioned above, women and men are both harassed.  In a 2020 survey of provinces, there the rate of reported workplace sexual harassment of women was lower than that of the territories but it was still substantially higher than the rate of harassment reported by men: one-quarter (25%) of women said that they had been personally targeted with sexualized behaviours in their workplace in the preceding year, along with 17% of men.
• For women, personal experiences of inappropriate sexualized behaviour were most common for those working in certain occupations historically dominated by men. Almost half (47%^E) of women working in trades, transportation, equipment operation and related occupations experienced these behaviours at work in the past year.
• First Nation and Metis – but not Inuit – men and women report a higher rate of harassment in the workplace, 18% and 37% respectively.
• Being subject to a disability is also a factor which raises the likelihood of being harassed for a woman.  The Statistics Canada report found that 39% of women with disabilities in the territories experienced inappropriate sexual behaviour in the workplace, compared with 25% of women without disabilities. For men, in contrast, there were no differences between men with a disability and men with none.

Myth #4 It’s a compliment

Harassing behaviour is not a compliment; it is an exercise in power dynamics and disrespect. Making someone feel disrespected or vulnerable is never flattering.

If you feel safe doing so, you should tell the person harassing you to stop.  report the harassment to another person in your workplace.  If your workplace has a harassment policy you should report it to the person identified for that purpose in the policy.  If it doesn’t have a policy you should consider reporting it to your supervisor, the Human Resources (HR) branch or your employer.

However, sometimes you might not feel safe reporting harassment; you may be concerned about retaliation and want to know what your options are before deciding on your next step.

Whether you have reported the harassment or have not, you can come to the Workplace Sexual Harassment Legal Clinic for legal assistance and support.  We can help you understand whether or not the acts you’re concerned about constitute harassment.  We can also give you legal advice as to how that harassment  can be addressed. 

In some cases, that may mean referring you to other agencies such as the Yukon Human Rights Commission.  We would walk you through the processes of any agency we referred you to and we would ensure that you were prepared for any discussions that would take place and any forms that had to be filled out and documents that had to be prepared. 

In other cases, we might advise that the circumstances of the workplace sexual harassment are such that it met the standard for being a sexual assault.  In that case we would refer you to the Sexual Assault Response Team, the Victim Services Branch or the RCMP.  Again, we would work with you so that you understood the processes that you might be embarking upon and we would provide legal advice so that you were aware of your legal rights at every step.  And we would also provide legal advice on options for remedy after any criminal processes.

And in still other situations, we might provide information that would help you decide whether you wished to bring a civil lawsuit against the harasser.  We could provide advice as to the costs you might entail, the process from start to finish and the potential outcomes.

A person who observes or becomes aware of harassment in the workplace but is not a direct target of it themselves, is often referred to as a “Bystander”.  They can have an important role in helping to ensure that a workplace remains harassment free and in supporting those who have been subject to harassment.

In some cases it may be possible to call out the harassment either in the moment, eg. “Wendy, you can’t say those things in a workplace.  It’s not respectful of others and no body likes to hear it” or a bit later, e.g. “Wendy, I have to tell you that you can’t make sexually charges statements like the ones that you made to Robin in a workplace.  We have to show respect to our colleagues and those comments were definitely disrespectful.   Please don’t say anything like that again.”  It’s easier to do that if you have some form of power or authority in the workplace yourself.

In other cases, you may be able to distract or divert the harasser in the  moment.  “Hi Frank, sorry to barge in on you but I need an answer to this question right now.  In fact, can you show me how to fill out the form.  It’s at my desk.”  Just hanging around obviously while you wait can sometimes divert a harasser from their actions.

But sometimes you aren’t able to act in the moment; you may be frozen or intimidated yourself, you might not be sure of the nature of what you’re  observing or you may be concerned about retaliation and the impact on your work life.  But you can always go to the victim and tell then that you saw what happened and that you believe that it was harassment.  You can say to the victim that you are prepared to back them up if they want to report it.

In most cases it will make sense to defer to the victim as to whether the matter should be reported or not.  They should not be forced into a situation which they are perhaps not ready for.  You can always refer them to the Workplace Sexual Harassment Legal Clinic for advice on their situation.

However, there may be situations in which a bystander has a responsibility to report workplace sexual harassment if they become aware of it.  Some workplace safety or harassment policies create a duty of reporting for employees and if they fail to report workplace sexual harassment they are aware of, they have breached the policy

An employer has an obligation to maintain a safe and harassment free workplace.  The  Occupational Health and Safety Regulations OIC 2006/178 state that the employer has a responsibility to ensure that all reasonable measures are taken to prevent hazards in the workplace and the  Occupational Health and Safety Regulations, O.I.C. 2020/121  classify harassment, including workplace sexual harassment as a workplace hazard. The Regulations set out how the obligation is met which includes having a health and safety committee, having a workplace health and safety policy, providing training on the policy to employees and investigating complaints made under the policy.  If the employer doesn’t meet these requirements they may be subject to prosecution under the Occupational Health and Safety Act.

The Yukon’s Human Rights Act explicitly makes employers responsible for prohibited discrimination by their employees but does offer them a way to counter that liability:

s. 35  Employers are responsible for the discriminatory conduct of their employees unless it is established that the employer did not consent to the conduct and took care to prevent the conduct or, after learning of the conduct, tried to rectify the situation.

Similarly, courts in Canada have found employers to be liable for the actions of their employee including workplace sexual harassment if they didn’t take steps to prevent workplace sexual harassment or to deal with complaints fairly and transparently once made. 

You can make sure that you have a workplace health and safety policy that specifically identifies workplace sexual harassment as prohibited.  You should make sure that all of your employees are aware of the policy and receive a copy upon starting employment with you.

You should also provide training to all your employees on the policy and about workplace sexual harassment; what it looks like, what its impacts are in the workplace and the consequences for employees who harass.  Training should be provided when an employee starts and should be made available regularly so employees can keep up to date.  The Workplace Sexual Harassment Legal Clinic can help you provide training to your employees.

If you become aware of harassment in the workplace you must take it seriously and investigate it in a fair and transparent manner.  If the result of the investigation is that workplace sexual harassment is found to have happened, you must implement recommendations for dealing with the harassment.

You should also be careful not to ignore, minimize or normalize sexual harassment in the workplace.  Workplace culture is not a defence to liability for harassment.  And you must ensure that there is no retaliation against those who do complain.  Either of these things – minimizing or normalizing  workplace sexual harassment or retaliating against complainants – will only increase your liability. 

The Workplace Sexual Harassment Legal Clinic provides free and confidential legal advice to those who believe they have experienced workplace sexual harassment, those who are aware of it happening in their workplace and those who want to ensure that their workplace is a harassment free zine.  We can help you figure out if what has occurred is workplace sexual harassment and what your options are for addressing it.   Depending upon what those options are, we can provide legal advice as you move through them although we cannot represent you. 

The Clinic can also help employers, organizations and others by providing general advice, information and training on workplace sexual harassment.

The Clinic, which is funded by Justice Canada and operates under the umbrella of the Yukon Legal Services Society (Legal Aid) is located at:

#103-2131 Second Ave., Whitehorse, Yukon, Y1A 1C3

867-393-6219 or 867-393-6236

wsh@legalaid.yk.ca 

The Yukon Human Rights Commission is able to receive complaints under the Human Rights Act in respect of workplace sexual harassment.  They can provide information as to what constitutes workplace sexual harassment under the Act as well as about the Commission’s complaint process.  The Commission also provides training relating to workplace sexual harassment and other forms of prohibited discrimination and in 2023 will be hosting a conference in Yukon on workplace sexual harassment.

The Commission has also introduced Spot, an automated chatbot which supports a person in documenting incidents of harassment.  Spot is accessed through the Yukon Human Rights Commission’s website at www.yukonumanrights.ca/spot .   

The Commission can be contacted at :

215-305 Main Street, Whitehorse, Yukon [Accessible entrance on 3rd Avenue]

Whitehorse, Yukon Y1A 2B4

867-667-6226 or 1-800-0535

yukonhumanrights.ca

The Sexual Assault Response Team (SART),  https://yukon.ca/en/sartyukon/home  can assist if the harassment you have suffered is actually a sexual assault.   They operate a Yukon-wide confidential support line – 1-844-967-7275 – open 24 hours a day, 7 days a week where a trained professional can help you access the emotional, medical or legal supports you need and provide information about your options.

Victim Services Branch

The Yukon Department of Justices’ Victim Services Branch can also provide support if the harassment is of a criminal nature.  That support includes helping you understand your rights and options, providing information about the court process including the ability to participate and to provide a victim impact statement.  In some cases they can help with emergency support from the Victims of Crime Emergency Fund.

If the harassment is a sexualized assault you are able to access the Independent Legal Advice (ILA) program – https://yukon.ca/en/get-legal-advice-victims-intimate-partner-violence-or-sexualized-assault – which provides free legal advice and information so that you can make informed decisions.

Victim Services can be contacted at

Whitehorse

301 Jarvis Street, 2nd floor
867-667-8500 or toll free1-800-661-0408, extension 8500

Dawson City

813B 3rd Avenue
867-993-5831

Watson Lake

820 Adela Trail
867-536-2541

For all communities: victim.services@yukon.ca