How Should an Employer Deal with Sexual Harassment in the Workplace?

In recent years, there has been increasing awareness of sexual harassment as an important social problem with serious implications for individuals and organizations.

In employment contexts, it is now understood that employers have responsibilities in relation to preventing sexual harassment in the workplace, and responding appropriately when incidents are reported.

Below, we provide some guidance to help employers responsibly navigate this sensitive area and ensure a healthy work environment for their employees.

What Kind of Conduct is Sexual Harassment?

In Alberta, employers are required under both the Occupational Health and Safety Act (“OHSA”) and the Alberta Human Rights Act (“AHRA”) to take measures to ensure that employees are not subjected to harassment, including sexual harassment, in the workplace.

How is Harassment Defined?

The OHSA defines harassment as:

… any single incident or repeated incidents of objectionable or unwelcome conduct, comment, bullying or action by a person that the person knows or ought reasonably to know will or would cause offence or humiliation to a worker, or adversely affects the worker’s health and safety, and includes

1. conduct, comment, bullying or action because of […] gender, gender identity, gender expression and sexual orientation, and
2. a sexual solicitation or advance,

Section 3 of the OHSA requires employers to ensure, “as far as it is reasonably practical for the employer to do so”, that no workers are “subjected to or participate in harassment or violence at the work site”.

While the AHRA does not define sexual harassment, it is considered a form of discrimination based on gender, which is prohibited under the AHRA. In addition, decisions of the courts have indicated that the terms and conditions of employment are broad enough to include workplace harassment, which makes that type of offending conduct subject to a human rights complaint (Robichaud v Canada (Treasury Board), [1987] 2 SCR 84).

Definitions of sexual harassment have also been provided by the courts. In Janzen v Platy Enterprises Ltd, [1989] 1 SCR 1252, the Supreme Court described sexual harassment in the workplace as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”

The Court noted that sexual harassment is sometimes divided into two categories: “the “quid pro quo” variety in which tangible employment related benefits are made contingent upon participation in sexual activity, and conduct which creates a “hostile environment” by requiring employees to endure sexual gestures and posturing in the workplace”.

In Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388, the Court of Appeal referred to a two-category approach that classifies harassment as either sexual coercion or sexual annoyance, and describes the type of conduct that falls within each:

“According to these definitions, sexual coercion is sexual harassment that results in some direct consequences to the worker’s employment status or some gain or loss of tangible job benefits. Sexual annoyance is sexually related conduct that is hostile, intimidating or offensive to the employee but nonetheless has no direct link to any tangible job benefit or harm. Rather, this annoying conduct creates a bothersome work environment and effectively makes the worker’s willingness to endure that environment a term or condition of employment. Sexual annoyance includes two subgroups: persistent requests for sexual favours that are persistently refused, and all other conduct of a sexual nature that demeans or humiliates the person, creating an offensive work environment. This would include sexual taunts, lewd or provocative comments and gestures and sexually offensive physical contact.”

Courts have been clear that while the categories may be helpful in identifying what constitutes sexual harassment, conduct falling in either category is prohibited and can lead to sanctions both against the harasser and the employer.

When Could an Employer be Liable for Sexual Harassment by One of its Employees?

Sexual harassment that occurs “in the course of employment” may result in liability for the employer. In Robichaud v Canada (Treasury Board), [1987] 2 SCR 84, the Supreme Court indicated that while the liability arises from the employer’s statutory obligations, it is akin to vicarious liability. An employer does not have to have actual knowledge of the discrimination to be held vicariously liable for the acts of its employees.

An employee may be “in the course of employment” when carrying out activities that are related or associated with her employment and where the employer had authority or control over the activities. This may include:

• activities which he or she might normally or reasonably do or be authorised to do while employed;
• activities which may be said to be incidental to the employment or logically and naturally connected with it;
• activities in furtherance of duties he or she owes to his or her employer.

(Cluff v Canada (Department of Agriculture), [1992] DCDP No 13, affirmed [1993] 2 FC 176)

What Should an Employer Do?

In Poliquin v Devon Canada Corp, 2009 ABCA 216, the Court of Appeal noted that “if an employer fails to act, it faces a significant risk of actions by employees who are subjected to discrimination or harassment – and properly so. […] Therefore, employers are fully justified in taking proactive steps, including the adoption of codes of conduct, to curtail and prevent improper conduct.”

The Alberta Human Rights Commission recommends that employers develop a sexual harassment policy, and undertake training to ensure that management and employees understand their rights and responsibilities related to sexual harassment in the workplace.

While employers are not obliged to maintain a “pristine working environment”, they are expected to take prompt and effectual action in response to complaints. This will generally require the employer to conducted a genuine investigation into the allegations, to issue a warning to the alleged harasser to cease the offending conduct, and in general to treat the complaint with sensitivity, in a manner that shows they have taken it seriously.

If the harassing conduct is serious, the employer may be justified in terminating the employment of the harassing individual. Summary dismissal is generally considered to be justified for conduct that violates an essential condition of the employment contract, is fundamentally or directly inconsistent with the employee’s obligations to his employer, or destroys the mutual faith necessary for the employment relationship (see eg, Watkins v. Willow Park Golf Course Ltd, 2017 ABQB 541).

If your business is dealing with a potential sexual harassment complaint, or would like guidance on developing policies and practices related to sexual harassment, Taylor Janis can help. Contact one of our experienced employment lawyers today.