Companies, organizations, and professional firms engage Neutra to conduct investigations into complaints and reports that could indicate instances of psychological or sexual harassment.
What exactly is “harassment”?
Harassment in the workplace can be perplexing. What exactly constitutes harassment, and what are the obligations of employers and employees when it occurs?
This page aims to elucidate the legal underpinnings of workplace harassment. It provides examples of how they manifest and insights into the legal obligations of both employers and employees
Harassment often comes with biases and misconceptions. Commonly, it is imagined as an individual in authority subjecting subordinates to relentless criticism to demean and humiliate them among peers, highlighting an abuse of power stemming from unequal power relations.
However, psychological harassment extends beyond the misuse of authority. It can manifest in various other contexts and include interactions between equals in the workplace, or involve third parties like clients, suppliers, and more.
When sexual harassment is mentioned, the classic situation one might envision is a male superior exploiting his position of power to subject a female colleague to sexually suggestive remarks, invitations, jokes, or inappropriate physical. This narrative does not encompass the full scope of sexual harassment, which can involve reversed gender roles, same-gender interactions, or non-binary individuals. Furthermore, the sexual orientation of the parties involved is irrelevant as per the definition of harassment provided in section 81.18 of the Act Respecting Labour Standards (the “Act”):
“81.18. Any vexatious behavior in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee. For greater certainty, psychological harassment includes such behavior in the form of such verbal comments, actions or gestures of a sexual nature.
A single serious incidence of such behavior that has a lasting harmful effect on an employee may also constitute psychological harassment.”
Ultimately, harassment is a vexatious conduct characterized by behaviors, words, acts, or gestures that:
Are repeated, though a single severe instance may suffice;
Are hostile or unwanted;
Violate the individual’s dignity or threaten their physical or psychological integrity;
Result in harmful working conditions, significantly impairing the quality of the employment conditions.
The presence of these four elements is necessary for the conduct to be recognized as constituting psychological harassment. While factors like gender and sexual orientation may be taken into consideration during the analysis of an incident, they do not serve as the legal basis for harassment.
Regardless of their sexual orientation, a person can perpetuate sexual harassment regardless of the victim’s gender. For instance, a homosexual man makes commit acts or make remarks that amount to sexual harassment towards a woman, and vice versa. Conversely, in instances of discrimination, the law requires evidence that the discrimination is based on prohibited grounds, such as gender identity or expression, sex, or sexual orientation.
Conversely, in instances of discrimination, the law requires evidence that the discrimination is based on prohibited grounds, such as gender identity or expression, sex, or sexual orientation. What if the incident occurred during a social event like cocktail hour with ample alcohol?
Workplace harassment may extend beyond the confines of the office. Incidents that occur outside regular working hours, such as work retreats, conferences, or business trips, may still fall within the employer’s jurisdiction if they impact workplace dynamics or are work-related, as established by case law.
Harassment may present itself in person, but also virtually through social media platforms, emails, telephone calls, text messages, office chat messages, etc.
While we present examples of psychological harassment, it is important that they be interpreted in accordance with the legally defined concept of harassment before labeling it as such. These examples are illustrative and meant to shed light on potential forms of harassment. Nonetheless, the assessment of each case should be conducted based on its own merits, in compliance with the provisions of the law and the applicable policies set by the employer.
Excluding a colleague from meetings or projects
Making humiliating comments about a colleague’s work in the presence of other coworkers
Mobbing
Exhibiting aggressive behavior
Spreading rumors
Making a false performance review
Constantly interrupting
Restricting key information when communicating with others
Isolating a person
Belittling a person by withholding meaningful tasks, assigning demeaning duties, or tasks beneath their competence
Unjustly accusing a person of making professional errors, or disparaging them in front of their peers
Issuing threats
Exhibiting violent behaviour
In situations where power imbalances exist, particularly one person holds a position of authority over another, it is essential to evaluate the actions according to the previously mentioned elements that define harassment under the law, as well as considering the legitimate scope of an employer’s management rights. These rights permit employers to use their discretion to guide workforce activities to ensure the proper functioning of their operations, such as adopting its own an administrative approach to manage performance or take disciplinary measures to address problematic behavior if necessary.
Therefore, the exercise of an employer’s managerial rights, when conducted in a reasonable manner without arbitrariness, abuse, or discrimination, does not constitute harassment. For further information on this subject, we encourage you to consult our section addressing the issue of abuse of power.
The legal definition of psychological harassment provided by the Act was amended a few years ago to include sexual harassment. Simultaneously, lawmakers imposed a new obligation mandating that employers incorporate a dedicated section into their policies addressing sexual harassment (Section 81.19 of the Act).
The concept of sexual harassment encompasses essentially the same elements as psychological harassment as defined by the law but includes a sexual component. This way, sexual harassment is defined as being a vexatious conduct that manifests through behaviors, words, acts, or gestures of sexual nature that:
Are repeated, though a single severe instance may also constitute harassment.
Are hostile or unwanted;
Violate the individual’s dignity or threaten their physical or psychological integrity.
Case law demonstrates that the first criterion, which states that such behavior must be repeated where it concerns sexual harassment, is less stringent in cases of sexual harassment, recognizing the gravity of such conduct. Sexual harassment is also subject to the Charter of Human Rights and Freedoms, which expressly forbids discrimination on grounds enumerate in Article 10 of the Charter:
“10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”
The law imposes various obligations upon the employers where it concerns harassment. Per Section 81.19 of the Act, every employee has a right to a work environment free from psychological harassment. To fulfill these duties, the employer:
Must take reasonable action to prevent psychological harassment.
Must put an end to a situation of harassment whenever he becomes aware of behavior that could constitute harassment (such as investigating, impose administrative or disciplinary measures).
Must adopt and make available to its employees a psychological harassment prevention and complaint processing policy. The policy must include a section on behavior that manifests itself in the form of verbal comments, actions or gestures of a sexual nature.
Training and coaching are effective ways of providing employees, as well as their managers, with tools to prevent and respond in instances of harassment.
Employees play a vital role when it comes to fostering a healthy, productive and safe work environment. Indeed, employees who take responsibility during moments of tension and conflict and effectively manage to prevent escalation, contribute to avoiding a situation of harassment. This is important as harassment sometimes originates from unresolved conflict. Of course, the involvement of the employer may be necessary, as it is not always possible for employees to resolve such situations on their own.The employees’ obligations are as follows:
Understand the harassment policy and undertake to comply.
Advise the employer of harassment that is occurring.
Avoid any conduct and/or behavior prohibited under the harassment policy and not tolerate such conduct and/or behavior.
Provide full cooperation in any investigation of complaints related to harassment, or any breaches of harassment policy.
Generally, the employees should act with civility at work, whether toward their superiors or colleagues within the workplace. Employees should demonstrate appropriate politeness, refrain from displays of inflammatory or provoking behavior.
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