Why Is this Still a Blog Topic?
This weekend I started watching the movie “Bombshell.” I couldn’t finish it.
Why? Because the depictions of workplace sexual harassment were too disgustingly real and familiar to me as an employment and human rights lawyer.
When I say “familiar”, I am not talking about the media or Donald Trump, and I’m not discussing intersectionality (although that is an important conversation). No, I’m simply talking about the day to day sexual harassment that continues to be pervasive in workplaces – here, in Canada, probably to women you know.
In some cases, the harassment and sexism remains blatant, but more often it is insidious, subtle, and hard to prove. For example:
A young woman is constantly interrupted, spoken over, and has her views completely disregarded in a meeting with male managers. Although this is outside her regular job duties, she’s asked to organize social events and help with scheduling duties, because the female employee who used to organize those things left.
When she brings these concerns to her supervisor post-meeting, the response is that she is being overly sensitive, and those tasks are normal for someone “junior” in the company to help out with. A week later, she is moved to a different role with less responsibility to meet the “organizational needs” of the company.
The owner of a small real estate practice hires a woman to assist him with some bookkeeping duties. The two occasionally work alone together in an office space. The relationship is friendly, although some of the comments and jokes made by the employer are sexualized, and seem a bit inappropriate to the employee.
Over time, the behaviour becomes more and more problematic, culminating in “joking” requests that the two have sex. The employee starts expressing her discomfort with the behaviour more assertively, and she is fired a few months later on the basis of performance issues.
The above scenarios occur more frequently than you would care to think, across industries, and to a variety of women, many of whom are not uniquely vulnerable.
Although the persistence of sexual harassment in the workplace is frustrating, courts and tribunals are beginning to provide higher financial awards in relation to sexual harassment, especially where it impacts employment security. For example, depending on the severity and consequences of the harassment, awards for injury to dignity alone now range from $15,000 to $45,000, in the context of the BC Human Rights Tribunal.
An excellent decision that reviews the law on this topic, and the current approach that should be taken by the Tribunal, was released in Ms. K v. Deep Creek Store and another, 2021 BCHRT 158. This approach emphasizes that there is an inherent power imbalance in the workplace, and that sexual harassment in the workplace is in itself an adverse impact, two important and historically underemphasized points.
What can I do if I’m experiencing sexual harassment at work?
The below guidance is based on the perspective of an employment lawyer, and does not replace the counselling or support that may be needed to process the emotional impact of sexual harassment (for some more immediate assistance, please see our Resources page). It also does not address situations where there is a concern about physical safety, which requires immediate reporting and removal from the situation. It is intended to address two common issues:
The burden of proving sexual harassment continues to rest on the victim, which means the employee has to be able to prove what happened.
Many people are familiar with the high standard of proof in criminal proceedings; however, in civil matters, the burden of proof is a balance of probabilities (i.e. you have to prove that it is more likely than not the harassment took place).
Employees are also often understandably concerned about repercussions to their job if they raise concerns about sexual harassment, especially where the harasser is a supervisor, manager or owner of the company. Although retaliation for raising concerns is legally forbidden, it remains a legitimate concern.
So, when you experience sexual harassment at work:
● Don’t ignore it! The temptation to ignore and minimize what may feel like minor instances of sexual harassment (inappropriate comments, uncomfortable compliments on your appearance, or probing questions about your personal life) in favour of job security is strong, and understandable.
However, sexual harassment will almost always continue to escalate if left unaddressed – ignoring it won’t stop the behaviour. Also, saying nothing may give the harasser a potential ‘out’ if later confronted (i.e. they can argue that they didn’t know it was unwelcome).
● Document any incidents, no matter how minor they seem, and trust your gut. Don’t like the way your boss touched your shoulder unnecessarily, or made an offhand comment or “joke”? Take notes with the date, time, what happened, and what your initial response was – these can be critical in legal proceedings. More immediately, this also helps you identify if there is a pattern of inappropriate behaviour, and see if the behaviour is escalating.
● Speak about your experience. Talk to a trusted friend or family member about the experiences you are having. Document these conversations, or have them over text.
This not only provides emotional support and a second opinion on your situation, but these people can also be witnesses down the road who can speak to the emotional impact of the harassment. If there are people who actually observed the harassment, make note of that too. Eventually, you should seek objective, professional advice.
● Communicate that the behaviour is unwelcome, and document you have done so, if you feel safe doing so. For example, if the issue is inappropriate comments, something along the lines of: “I wanted to let you know that you making jokes about my sex life makes me uncomfortable. I’d like to keep our relationship friendly, but professional.” If that is communicated verbally, send a follow-up email that says “Thanks for our discussion today, where you said you understood why I was uncomfortable with “X” behaviour. I appreciate that you confirmed you would no longer make those types of comments.”
● Report the sexual harassment using your workplace policies. Workplaces should have a process to report sexual harassment that protects you from retaliation for doing so. If you are nervous about confronting the harasser, talk to your HR person. But remember, the HR person ultimately also works for your employer. That is why getting outside advice can often be helpful, even if ultimately you are directed to make a formal complaint using the systems in place at your workplace.
If you are experiencing sexual harassment in the workplace, we encourage you to speak confidentially to an employment lawyer.
Getting legal advice does not mean you are committing yourself to starting legal proceedings, or even reporting the harassment, but it does mean you can get practical, objective information about what your options may be, in a safe and completely confidential space.