Harassment based on personal characteristics like race, age, sex, sexual orientation, disability etc. is a form of discrimination and is contrary to Section 14(1)(a) of the Act, which states that “No person shall harass any individual or group by reference to a prohibited ground of discrimination; […]”. Section 14(2) of the Yukon Human Rights Act (“the Act”) defines harassment as “[…] a course of vexatious conduct or to make a demand or a sexual solicitation or advance that one knows or ought to know is unwelcome.” Objectionable acts, comment or displays that demean, belittle or cause personal humiliation or embarrassment, and any acts of intimidation or threat, may all constitute harassment if they are related to a protected characteristic under the Act.

While repeated conduct is often required for it to be considered harassment, a single incident can be harassment if it is extremely serious, has a significant and lasting impact on the complainant, and negatively affects the work environment.

Employers, service providers and landlords are responsible for providing an environment or service that is free of harassment. It is the employer’s, service provider’s and landlord’s responsibility to develop a clear, comprehensive and effective policy against all forms of harassment and take action when harassment occurs.

Establishing Harassment

While harassment occurs in most protected areas like housing, leasing or renting, and receiving services and goods, it occurs most frequently in the context of employment. To substantiate a claim of harassment, the complainant must demonstrate, on a balance of probabilities, that:

• The respondent displayed a course of vexatious conduct;
• The comment or act was made in connection with a protected area;
• The respondent knew or reasonably ought to have known that such behaviour would be unwelcome; and
• The conduct occurred in relation to one or more prohibited grounds of discrimination under the Yukon Human Rights Act¹Budge v Talbot Arm Motel Ltd and Charles Eikland, 2018 YHRBA at p. 37.

Severe Act or Pattern of Actions

Let’s break that down a bit. The first important concept is “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 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.

Unwelcome and Harmful

Conduct that “one knows or ought reasonably to know is unwelcome” is the last part of the test. 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 harassment, what matters is the impact on the individual being harassed.

Therefor, we find that a pattern of distressing actions or demands related to a protected ground(s), in a protected area, which would make a reasonable person feel uncomfortable, embarrassed, or afraid, is very likely to be harassment for the purposes of the Yukon Human Rights Act. For an overview of protected areas and grounds, please see What is Discrimination?

Sexual Harassment

Harassment can be based on any number of grounds, like race and religious beliefs. However, harassment on the basis of sex, especially in the context of employment, is especially common. Sexual harassment is an offensive or humiliating behaviour that is related to a person’s sex, sexual orientation and gender identity or expression. It covers a range of actions from touching to inappropriate comments. The Supreme Court of Canada has defined sexual harassment in the context of employment as “any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity.”²Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 at p.33

Offensive actions or comments need not be intentional to be considered sexual harassment. Sexual harassment can occur between persons of the same sex, and men can be the victims as well. Sexual harassment in the workplace is also not limited to situations where a sexual favour is demanded in exchange for a tangible economic reward. However, a common element in all descriptions of sexual harassment is the “concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.”³Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252

Following the Supreme Court’s decision in Robichaud v. Canada, [1987] it was acknowledged that an employer is liable for an employee who commits sexual harassment in the workplace because of the remedial purpose of human rights legislation: the employer is the only party that can eliminate the effects of discrimination by providing a healthy workplace.⁴Robichaud v. Canada, [1987] 2 SCR 84

For more information on Workplace Sexual Harassment, please click here.