Workplace sexual harassment is a very big deal. If ignored or addressed improperly, it can impact everything from worker productivity and a company’s bottom line to individual employees’ job satisfaction and self esteem. Its effects cascade down through entire teams, and those around them. Ultimately, it is an illegal form of discrimination. For these and many other reasons, addressing workplace sexual harassment is everyone’s business. In order to take meaningful action to address workplace sexual harassment it is essential to understand what it is. The purpose of this document is to facilitate meaningful action by clarifying what we mean by the term workplace sexual harassment.
Harassment occurs in many forms, and is always wrong. However, legal protections have limits, and the Yukon Human Rights Act (the Act) only offers protection against harassment that occurs based on certain protected characteristics (called grounds), and in certain protected situations (called areas). Workplace sexual harassment is prohibited by the Act because all aspects of employment (hiring, firing, treatment while employed, etc.) are a protected area, and sex (including pregnancy) and gender identity and expression are protected grounds.
Under the Yukon Human Rights Act (the Act), harassment is defined as to:
“engage in a course of vexatious conduct or to make a demand or a sexual solicitation or advance that one knows or ought reasonably to know is unwelcome.”
Severe Act or Pattern of Actions
Let’s break that down a bit. The first important concept is the part about “a course of vexatious conduct”. In this case, vexatious means distressing or troubled. A course of behaviour means that the behaviour occurs more than once or is part of a pattern. A course of vexatious conduct simply means a pattern of distressing actions.
A single act may be considered sexual harassment if the act is severe enough. The more severe the act, the fewer times it must happen for it to be considered harassment. For example, a single act of sexual assault would almost certainly constitute sexual harassment but using a gender specific slur once may not.
A Demand, Solicitation or Advance
The second important concept is “to make a demand or a sexual solicitation or advance”. This generally refers to asking for something related to the sex, gender identity, or gender expression of the person being harassed. This may range from asking someone on a date to demands for sexual acts.
Sex and gender identity or expression are protected grounds under the Act.
Combining the first two parts of the definition, we find that a pattern of distressing actions or demands related to sex, gender identity, or gender expression is very likely to be sexual harassment. Some examples may include displaying sexualized images in a shared work bathroom, a supervisor who has authority over an employee’s performance review demanding a date. It could also include calling someone a derogatory name associated with their sex or gender, or refusing to call a co-worker by their preferred pronouns.
Unwelcome and Harmful
Conduct that “one knows or ought reasonably to know is unwelcome” is the last part of the definition. This part could be rephrased as “Would the conduct make a reasonable person feel uncomfortable, embarrassed or afraid?”. A person’s behaviour must meet the standard of an ordinary person; their intent does not matter. With workplace sexual harassment, what matters is the impact on the individual being harassed.
So, sexual harassment generally means repeated or extreme actions or demands related to their sex, gender identity, or gender expression which make another person feel uncomfortable, embarrassed, or afraid. Knowing this, it is easier to understand why sexual harassment almost always involves power dynamics and does not necessarily have to involve sexual attraction. For example, someone who consistently makes sexist jokes which undermine the confidence of a colleague may not be making the jokes because they are sexually attracted to the colleague. However, they are still sexually harassing their colleague by making them. Whether intentionally or not, these sorts of jokes often reinforce traditionally gendered work environments and may undermine the authority and self esteem of those who are their targets.
Another way in which power dynamics are often at play is the threat of retaliation. Retaliation, or the fear of retaliation, is a key piece of many workplace sexual harassment situations. Employees being harassed may not voice their discomfort with their boss’ actions because they fear they may lose their job or miss out on opportunities for advancement. They may also fear retaliation from their coworkers if they “snitch” or are a “killjoy”. Fear of retaliation and lack of confidence to deal with the allegations appropriately are two of the main reasons many victims do not report workplace sexual harassment.
Context matters a lot when we are talking about sexual harassment. A colleague with equal standing in a workplace politely asking another on a date may be perfectly fine and not likely to make the other person uncomfortable, embarrassed, or afraid, but the same proposition from someone’s boss may be very uncomfortable if the person feels like they may face negative consequences if they say no.
Another way in which context matters is when we consider what is meant by the workplace. Some situations are obvious. Sexual harassment occurring in your office environment or on your work site is clearly occurring at work. However, the term workplace also includes situations in which someone is representing their employer, or where workplace power dynamics are at play. These could include situations like dinners with clients, travelling to a jobsite, or even parties. Co-workers continue to be co-workers outside of the physical work environment, and these relationships and power dynamics are the true foundation of what is meant by workplace.
Workplace Sexual Harassment is Everyone’s Business
There are a lot of myths and assumptions about workplace sexual harassment. Nothing in the definition of workplace sexual harassment says that harassers are male, and those harassed are female. Studies show that the majority of victims are female, but not all. Sexual harassment doesn’t have to contain any element of sexual attraction; harassment because a worker is pregnant or their gender expression is outside a workplace norm is still sexual harassment. Workplace sexual harassment can happen to anyone, and be perpetrated by anyone, but some are more likely to be victimized than others. Individuals with other protected characteristics such as a disability, members of racial minorities, and LGBTQ2S+ individuals are all at higher risk of being sexually harassed in the workplace.
Whether you are an employer, an employee, an advocate, or a contractor, understanding the legal definition of workplace sexual harassment is vital. Knowing the definition can allow you to better understand your workplace rights and responsibilities. It is also a vital first step to taking meaningful action against workplace sexual harassment to create more respectful workplaces in Yukon.
If you have any questions about workplace sexual harassment, please contact the Yukon Human Rights Commission. We are here to help!