Ask the CCLA: Harassed at work—what can I do?

May 19, 2015

People are harassing me at work because of my sexual orientation and/or my gender identity. What can I do to stop it?

Harassment in the workplace on the basis of race, sexual orientation, or another such characteristic is a form of discrimination. Such characteristics, when recognized in law, are called “prohibited grounds of discrimination”.

You can download a PDF of this response including footnotes here: Homophobic and Transphobic Workplace Harassment.

The process to deal with workplace harassment will differ depending on whether your place of work is regulated by the Federal government, or falls under the responsibility of your province or territory. Most workplaces will fall under provincial or territorial jurisdiction – but if you are uncertain, you can contact your province or territory’s human rights commission or human rights tribunal to find out.

If your employer is under federal jurisdiction, the Canadian Human Rights Act applies. If your workplace is regulated by a province or territory, it is the Provincial or Territorial Human Rights law that will apply instead.

The following is a list of federally regulated employers and service providers:

  • federal departments, agencies and Crown corporations
  • chartered banks
  • airports and air transportation
  • shipping and navigation (including loading and unloading vessels)
  • television and radio stations
  • telecommunications
  • interprovincial or international transportation of goods or passengers by road, railway or ferry
  • uranium mining and processing
  • grain handling
  • First Nations governments and some other First Nations organizations

The following is a list of provincially/territorially regulated employers and service providers:

  • retail stores,
  • restaurants,
  • hotels,
  • construction,
  • insurance,
  • health care,
  • education,
  • the oil and gas industry,
  • provincial or territorial governments and departments

If your case involves provincial or territorial law, you should contact the human rights agency of the province or territory where the discrimination occurred. For the list of provincial and territorial Human Rights bodies, and their websites, please see here.

In the Federal context:

Harassment on the basis of sexual orientation or another prohibited ground of discrimination (such as national or ethnic origin, disability, etc.) is a form of discrimination.

While “gender identity” and “gender expression” are not listed in the Canadian Human Rights Act itself, tribunals, courts, and the Canadian Human Rights Commission recognize and prohibit discrimination based on “gender identity” and “gender expression.”

According to the Canadian Human Rights Act, harassment involves any unwanted physical or verbal behaviour that offends or humiliates you. Generally, harassment is a behaviour that persists over time, although serious one-time incidents can also sometimes be considered harassment.

Harassment occurs when someone:

  • makes unwelcome remarks or jokes about your race, sex, religion, sexual orientation, or any other of the 11 listed or recognized grounds of discrimination (including: sexual orientation, gender identity or expression, national or ethnic origin, age, marital status, family status, disability, or a conviction for which a pardon has been granted or a record suspended).
  • threatens or intimidates you. 
  • makes unwelcome physical contact with you, such as touching, patting, pinching or punching, which can also be considered assault.

Under the Canadian Human Rights Act, employers have a responsibility to ensure that their policies and practices are fair and equitable, and that these help prevent discrimination, harassment or retaliation towards individuals, or groups of individuals who work for them or receive services from them. Employers are responsible for providing a workplace free from harassment and are obligated to take appropriate action against any employee who harasses someone.

If you want to file an official complaint with the Canadian Human Rights Commission (CHRC), there are two things you need to consider first:

1. The CHRC will generally (but not always) expect and encourage you to try and solve the problem by using an internal dispute resolution process first, like contacting the person listed in your workplace anti-harassment policy, finding out if there is a company grievance procedure to help you, or getting in touch with your union representative. It might be that, by reporting the abuse and then following internal procedures at your workplace the harassment you are experiencing will stop. If harassment occurs while receiving service from a business, the human rights officer will encourage you to speak to a manager or contact the customer service department, if the organization has one.

2. Your complaint needs to meet certain criteria to be valid: Not all unfair situations will be recognized as a discrimination complaint under the federal human rights law. A recognized complaint requires one of the listed or recognized grounds of discrimination (such as sexual orientation or gender identity), a discriminatory practice (such as harassment), and a negative effect on you. Further, only people who are in Canada legally can file a complaint, and your complaint must be filed with the Commission within 12 months of the incident otherwise your complaint may be refused.

If the internal processes at your work weren’t effective, or you don’t feel safe in reporting the harassment at your work and you’d like to file a complaint, you will need to fill out a CHRC complaint form. You can obtain a complaint form by contacting the Commission in writing or telephone (see their contact information here) or by completing the Commission’s online complaint assessment tool, an online questionnaire that will help you determine if you have a legally valid complaint. It is available here.

Once you have confirmed that you have a legally valid discrimination complaint, and are ready to fill out your complaint form, make sure to include:

  • the action or decision that you think is a discriminatory practice,
  • the grounds of discrimination involved, and
  • how the discriminatory practice affected you.

Mail or fax your completed complaint form to the Commission at:

Canadian Human Rights Commission

344 Slater Street, 8th Floor

Ottawa, Ontario K1A 1E1

FAX: (613) 996-9661

In Ontario:

Similar to the definition of harassment under the Canadian Human Rights Code, Ontario’s Human Rights Code defines “harassment” as engaging in a course of vexatious comments or conduct that is known or ought reasonably to be known to be unwelcome.

Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually needed. Regardless of the  type of business or employment, – harassing behaviour based on Code grounds in any employment setting is prohibited under Ontario’s Code.

Ontario’s Code provides that every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual harassment includes unwelcome sexual contact, remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours, spreading sexual rumours (including on-line) and displays of sexually offensive pictures or graffiti. Comments and/or conduct do not have to be sexual in nature. Someone may tease or bother you because of gender-based ideas about how men or women “should” look, dress or behave. If you are a trans person, the law is designed to try and protect you from degrading comments, insults or unfair treatment because of your gender identity or gender expression.

The Ontario Code protects against discrimination, listing 17 different personal attributes. In Ontario, the prohibited grounds of discrimination are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment).

The test to establish discrimination under Ontario’s Human Rights Code requires that the claimant show:

  • that they have a characteristic protected by the Code (e.g. race)
  • that they experienced adverse treatment/impact within a social area (for example, in accessing a service, housing or employment)
  • that the protected characteristic was a factor in the adverse treatment or impact.

The Ontario Human Rights Commission (OHRC) recommends, as a first course of action, to start keeping a written record of events if you think you are being sexually harassed. This recommendation may be helpful if you are experiencing another form of discriminatory harassment. Write down:

  • what happened
  • when it happened
  • where it happened
  • what was said or done
  • who said or did it
  • who saw what happened
  • what you did at that time

The OHRC also recommends that where possible, you should make it clear to the person harassing you that their behaviour is unwelcome and that you want it to stop – however you do not have to object to the harassment at the time it happens for there to be a violation or for you to be able to claim your rights under the Code.

Again, like with the CHRC, the OHRC suggests that where possible, you should try to resolve the problem through any internal policies or resolution mechanisms that your employer may have, though using an internal mechanism does not replace your right to file a human rights claim at the Human Rights Tribunal of Ontario (HRTO).

To file a complaint with the Human Rights Tribunal of Ontario (HRTO), follow the instructions on their website, available here. Like the process under the CHRC, the complaint should be done within one year of the last incident of harassment.

If you want to talk about your rights or need legal help with a human rights claim, you can contact Ontario’s Human Rights Legal Support Centre (HRLSC). The HRLSC is independent of the HRTO and offers free services throughout the province. Please see their website for more information.

Harassment in the workplace is also prohibited under Ontario’s Occupational Health and Safety Act. The Ministry of Labour enforces Ontario’s Occupational Health and Safety Act. Under the OHSA, workplace harassment means: “Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Workplace harassment includes bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls. Though the Ministry encourages internal workplace resolution of complaints, if an employer is not complying with the workplace harassment requirements in the OHSA, workers can call the ministry’s province-wide Occupational Health and Safety Contact Centre toll-free at 1-877-202-0008 to file a complaint. Individuals who wish to remain anonymous may do so.

For complaints outside of the Federal or Ontario context, please see the list of provincial/ territorial Human Rights bodies hereTheir websites contain information about the relevant law and complaints processes.

 


We hope that you find this information helpful. The information provided is current to January 2017, and consists of general legal information. It is not legal advice. CCLA does not take responsibility for information found on external websites, even where we have provided links to that information. Everyone’s legal situation is different. If you are facing a legal issue, we recommend that you seek independent legal advice. You can find a list of legal clinics and other resources to help you here.