#metoo has been changing how we see and react to harassment for some time now — but what is the definition of harassment? Let’s take a look at the Ontario Health & Safety Act with Workplace Law instructor Colleen Dempsey, and explore what conduct is legally harassing, how it affects workers in the province, and what implications it might have moving forward.
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00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. For over a year now, we’ve been watching the Me Too movement and a seismic shift in public perception and consequences around harassment. But Me Too has been very Hollywood-centric. We’ve been seeing some news and changes on the Canadian side, but as something that’s rooted in the definition of harassment, we wanted to get a better understanding of where the law actually stands. Fortunately, Colleen Dempsey can explain it all. She is the instructor of Law 203/703, Workplace Law, and she’s gonna walk us through recent changes to the Ontario Health and Safety Act. It wasn’t changed in response to Me Too, but the timing couldn’t be more pertinent to the cultural conversation around harassment happening right now. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:09 S1: Why has the province updated the Occupational Health and Safety Legislation?
01:14 Colleen Dempsey: The province had experienced through the complaint process a number of concerns over a period of time that involved unwanted advances, unwanted comments, unwanted touching, things that constitute harassment. They also updated it with respect to violence and then under a subset of harassment was sexual harassment. So they had a number of people, hundreds of people, thousands of people who made complaints under the Act, but there was no mechanism for these things to be dealt with until they actually amended the Act.
01:45 S1: Under the Act as it is now, following the amendments, what is the definition of harassment in Ontario?
01:51 CD: The Occupational Health and Safety Act defines harassment, workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or reasonably known to be unwelcome. And when they say “Vexatious,” what they mean in law is that its sole purpose is to cause annoyance, frustration, or harassment to the intended victim.
02:11 S1: So, there’s kind of two elements there. One is that it’s annoying or frustrating or harassing and the other is you have to mean to do it.
02:19 CD: Right. So always, when we’re dealing with this type of Act, it’s called mens rea, you have to have a guilty mind. And it doesn’t matter that you might think it’s innocent or you think you’re just playing. The fact of the matter is, you would probably get that it’s unwelcome because of the way in which the recipient responds to it, or for that matter doesn’t respond to it.
02:39 S1: So is there an element of persistence then to it as well? If something is, like, “That’s unwelcome. Don’t do it again?” Or is it kind of the first time you do it, that can in itself be problematic?
02:49 CD: Well, typically, the comment or conduct occurs more than once. It can in fact be only once. It could be so egregious that it’s a single instance. However, it can occur over relatively short periods of time. For instance, during the course of one day, or a longer period like weeks, days, months, what have you. And when the situation is a single instance, an example of this would be unwanted sexual solicitation or an advancement on the person from a supervisor or manager that constitutes workplace sexual harassment where there is particularly a power imbalance.
03:22 S1: And we’ve mentioned the word unwelcome a few times. I think unwelcome is fairly self-explanatory, but the fact that we’re saying unwelcome now is actually a step forward with the law itself, right?
03:34 CD: Absolutely. For a long time, people took the position that it was in good fun; that it was okay for people to make comments about other people’s appearance, their sexual desirability, the color of their skin, the length of their hair, did they smile, did they not smile, did they have hair, are they skinny, are they not skinny, do they have a prominent behind, do they have prominent breasts? And people felt absolutely free to make comments. Typically, the comments, and we’re speaking in a heteronormative sense, were from straight men to straight women, but that doesn’t mean that it didn’t occur from women to men and/or it didn’t occur from men to gay men or to lesbians and in an attempt to intimidate or to isolate an individual.
04:20 S1: So this law obviously applies equally to everyone.
04:23 CD: Absolutely. Anyone who’s classified as a worker under the Act.
04:26 S1: But the use of the word unwelcome is actually… It’s a different word now.
04:30 CD: Yes.
04:30 S1: And it used to be sort of deemed offensive, or…
04:34 CD: So it had to be it was from the perspective of the reasonable person that it was objectively offensive and what not. But the point now, it’s in fact from the recipient. From the perspective of the recipient, is this an unwelcome intrusion into their life? And they give examples such as making remarks, jokes, or innuendos that demean, ridicule, intimidate, or offend a person, displaying or circulating offensive photographs or material in print or electronic form, bullying someone, repeated offensive or intimidating phone calls, emails, unwanted touching, unwanted sexual harassment, even brushing up against someone if you do so in a deliberate fashion and you touched their behind, you go… Rubbing someone’s forehead. Like there are things that people should just not do and people have done in the past and there came a point where the government realized enough was enough.
05:28 S1: Right. And everything you mention, some of these things, I have seen myself in workplaces I’ve been in the past. I should stress that I’ve seen none [chuckle] of these things in the workplace where I am right now…
05:38 CD: Go Queen’s Law.
05:39 S1: Exactly. But I either have seen or can easily imagine all of these behaviors and I can also kind of squint and see how if I think back to when I was a kid, or when slightly older listeners might have been kind of young professionals, how all of this did use to be sort of hand waved away.
05:58 CD: Mm-hmm.
05:58 S1: So this is a stronger stance legislatively against stuff that we just used to not take as seriously, I guess.
06:06 CD: Well, absolutely. This certainly predates the #Metoo movement. This was a recognition of a past that in many respects, we as a society have moved forward as we have evolved the manner in which we have structured our Human Rights Legislation. As time goes on, we expand that which is protected grounds. To prevent discrimination or harassment you are prohibited to harass someone on the basis of race, ancestry, their place of origin, their color, their ethnic origin, their citizenship, their creed, which is a more archaic way of saying religion, sex, including pregnancy, their sexual orientation, their gender identity, their gender expression, their age, be it over or under 18 or 16, marital status, family status, disability, whether or not they’re in receipt of public assistance, that is, of course, an accommodation, and the record of offenses in employment. So we expand the specific grounds, and we also have what’s known as analogous grounds. If we say individuals who are not specifically set out in the Human Rights Code or in the Occupational Health and Safety Act but we recognize that they represent a discreet and vulnerable group in our society, so we will protect them as well. And we also say, as a society, it is inappropriate to discriminate or harass people in areas of employment, housing, services, and education.
07:32 S1: And this is all pretty central to Workplace Law. This is essential things that people need to know if they’re going to be in or going to be managing a workplace.
07:40 CD: Absolutely. There is now and there didn’t used to be, a positive duty on employers to create anti-harassment policies. And the onus is on them to provide this information to new employees so they understand what their rights are and, frankly, what their obligations are. So if one is, unfortunately, the recipient of harassment you can’t just, or you shouldn’t just sit there and say to yourself, “Okay, it’ll go away. It’ll go away.” You have a positive duty to say something. We all have a role in this in our workplaces to prevent this from going further. So if someone harasses you or you are a witness to harassment of a colleague, it is incumbent upon you to go to the person who is the HR, the supervisor, and say, “I have seen X, Y and Z occur,” and then it’s incumbent on them to address it. And there are reporting obligations through the Occupational Health and Safety Act and whether or not you call the Ministry of Labor, but you must take that first step.
08:40 S1: So this idea of it being incumbent on you, that’s what’s meant by a positive duty?
08:44 CD: Yes, a positive duty that… We all have a role to play, and the only way that we can prevent workplace harassment and workplace sexual harassment is if we all recognize our duties. And certainly, now employers have this obligation to investigate complaints. Previously, people would go and say, “Oh, so-and-so is causing a problem. He or she is making inappropriate comments about someone’s attire or their national dress,” or what have you, and they would… Employers would go and say, “Hey, please don’t do this.” Now you have to fill out reports. You have to acknowledge. And if there’s a pattern of conduct, then this constitutes an opportunity to terminate someone’s employment so that they are no longer in a position to offend.
09:28 S1: When we started looking at types of conduct, when you were reading the definition of harassment and we unpacked it into certain areas. There seem to be two large areas in there. One is things that can happen peer-to-peer, but the other is this idea of an imbalance of power. That this can play out in a way that… The law is supposed to prevent people who are at a higher level or have more power from literally abusing the people who are underneath them.
09:54 CD: Right and taking advantage of them. So there is a recognition throughout our legal system that where there is an imbalance of power, be it an employer, an employee… And it used to be called the master-servant relationship in recognition that the person who holds the purse strings ultimately they can prevent you from advancing. They can prevent you from getting raises. They can, in fact, prevent you from doing your job. It can cause mental health issues. It can cause physical health issues. A person in position to confer or grant you a benefit or somehow an advancement in your workplace, they must not solicit you for sex, for sexual favors, or they must not harass you. People have, unfortunately, been victimized by inappropriate images of a racial nature or a sexual nature. I, myself, when I was [chuckle] a general counsel, on the highest legal officer in a corporation, I had a male employee send me a photograph that was pornographic in nature, and he thought it was hysterical. He could not understand what it was I didn’t like about this photograph. And, in fact, we had to sit him down with a sensitivity counselor for him to understand that in no shape, way, or form was I interested in receiving this from anyone, let alone somebody I had spoken two words to.
11:10 S1: Right.
11:11 CD: And he took it as I had no sense of humor, whereas he had to understand he was inappropriate. It was unwelcome.
11:20 S1: Right.
11:21 CD: And that is now the change. The person who’s the recipient no longer has the onus to say, “Well, this is why it’s… I’m not a sensitive person. Other people would be disturbed by this as well.” We can no longer accept workplaces where individuals are treated in that fashion.
11:41 S1: Broadly speaking, this legislation represents a shift to an environment where the law is moving kind of with society.
11:49 CD: Right.
11:50 S1: This is something that comes up fairly often in this space is that the law is a living document.
11:55 CD: Absolutely.
11:56 S1: It’s evolving with us, so it feels like as a society we’re saying things that we used to accept we no longer accept and the law has now kind of… I don’t know if it’s catching up. It sounds like, from your example it catches up in some places and it sort of forces people forward in others.
12:12 CD: Well, if you look at the law, in general, in Canada, and in fact, if you consider the person’s case that recognized women were people under the law, the language in there, in fact, the law is a living tree that we recognize as our society evolves, and groups and individuals that were previously considered to be less than are welcomed into the tent of our society and are valued members of our society. And if we look, by contrast, to other jurisdictions, we can see that people are not so welcoming. In fact, when I was in law school, that was when the legislation went through to recognize same-sex partners, providing spousal benefits, and eventually the right to marry. And these are issues of rights and Canadians have a strong belief, and this is demonstrated through survey after survey that Canadians are not comfortable with the idea of restricting rights. We are more an inclusive view of rights as opposed to an exclusive list of rights. So that’s why we have analogous grounds. So if you don’t fit within the 17 categories, but you can demonstrate that analogy to those categories, then the law says, “We will protect you.”
13:22 CD: And over time we recognize that the past treatment of individuals and asking people to accept what is truly unwelcome and unacceptable behavior. And I would emphasize that it’s not that every person in every workplace was experiencing this. What it was was very often a single person in a workplace was engaging this conduct over a course of time to many, many people. And so, you have one person who, through a desire to intimidate or to hassle and what have you, made the work experience of so many people uncomfortable. We’re talking about invading people’s personal space, demanding hugs, and this is course of a sexual nature, verbally abusing people, or making gender-related comments about physical characteristics, the mannerisms, saying to a man, if he was considered to be an effeminate man or a woman who was considered to be butch. None of these things have anything to do with someone’s job and how in fact they do their job. But people did feel free to comment on, down to you didn’t smile today. “What’s a nice girl like you… Why wouldn’t you smile?” Maybe that person doesn’t wanna smile. Maybe they’re not feeling like smiling.
14:40 CD: So we… And we want to also take a stand against violence in the workplace, because often the harassment can escalate into a position of violence where individuals are rebuffed. A good example of evolution in our society is gender identity and gender expression. So gender identity is a person’s internal and individual experience with gender and it’s their sense of being a man, a woman, both, neither, or somewhere, anywhere in between on the gender spectrum. And the manner which they express that is their choice. And gender expression is how they publicly express this. For a long time people felt that you are either a man or a woman. And in fact, one of my dear friends, a well known professor, a legal professor, transitioned from a man to a woman at the age of 69. That would have been unheard of 20 years ago. Even in a progressive profession like the law, this person would have been looked at askance. But now people go, “Oh, I understand.”
15:50 S1: Yeah. And, so the law’s sort of evolving with us.
15:54 CD: Absolutely.
15:54 S1: And as we move forward. What you were talking about, people who are gender fluid, that’s a situation that was once analogous and is now text.
16:04 CD: Correct.
16:04 S1: So this is… I don’t think there’s any way to predict the future accurately but it’s interesting to think that if people are bringing up analogous grounds today, that may well become the text of tomorrow.
16:16 CD: This in fact is how our laws work. If you consider disability, for a very long time employers were not required, if someone had a hearing difficulty or if they had a visual difficulty, the employer was like, “Well, you can’t do the job.” But now, we’ve reached the point where we’re saying, “No, no, no. Is hearing or sight a bonafide occupational requirement? And if you’re gonna say that it is, you better be able to demonstrate that both objectively and subjectively.”
16:43 S1: Right.
16:43 CD: And now employers have a duty to accommodate people to the point of undue hardship. And this is something that was not the case. I, myself, having two children, one of whom is legally blind and the other has a hearing impairment, had my children been born say 25 years ago, they would face very different workplaces and they will when they are adults and they won’t be adults for a good 10 years. So I have great hope for what the workplace will look like for them, particularly as they are young girls.
17:14 S1: Right.
17:15 CD: And I fully recognize that men and race and gender and gender fluidity are also vulnerable groups. If you think about that.
17:29 S1: So it feels like kind of at the end of the day, and Workplace Law is complicated. This is why we have an entire course about it. [chuckle] And well done, you, for taking us through this course.
17:37 CD: Thank you.
17:40 S1: It feels like, though, at the end of the day, if there’s just one nugget, if there’s a golden rule, it’s if it doesn’t have anything to do with the actual job that’s being done, leave it out.
17:49 CD: Absolutely. Of course we don’t wanna create workplaces where people have no human interaction. But as you say, if it is nothing to do with the job, err on the side of caution, simply because someone might find it unwelcome, and they may not feel in a position where they can express their discomfort. And I’m thinking in the future where I do think the law will continue to evolve is under the definition of who a worker is because there are certain restrictions both under the Employment Standards Act and the Occupational Health and Safety Act of what constitutes a worker, and so this causes problems for people who are in precarious employment situations, and the law does not provide them with the same coverage that it does for people who are in traditional employment relationships. So I think the law will then expand the definition of who is covered.
18:40 S1: I think that’s probably an interesting second conversation actually.
18:45 CD: Well, hopefully we will have it.
18:46 S1: Yeah, thank you very much.
18:47 CD: Thank you for having me.
18:51 S1: Thanks to Colleen Dempsey. If you have employees, plan to hire employees or are an employee, you should work into our course on Workplace Law, Law 203/703. Find out more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton and original illustrations for this podcast available at takelaw.ca are by Valérie Desrochers. Thanks for listening.