Human Rights Commission has opportunity to change workplace culture around sexual harassment

Sexual harassment in the workplace has been a focus of recent talk and action, spurred on by the #MeToo movement.

As one of many ways in which women continue to experience inequality at work, more needs to be done to prevent and address workplace sexual harassment. The forthcoming BC Human Rights Commission is well-positioned to play an important role in changing workplace cultures when it comes to sexual harassment. The BC Human Rights Commission was reestablished by legislation in November and is expected to be in operation later this year.

It is difficult to estimate the extent to which sexual harassment in the workplace exists, though several recent polls indicate that it remains an enduring issue for Canadians. A 2014 Angus Reid poll found that 43% of women and 12% of men reported experiencing sexual harassment in the workplace. A more recent poll found that 52% of women reported experiencing sexual harassment at work in their lifetime and 89% of women reported taking steps to avoid sexual harassment in the workplace. This illustrates not only that sexual harassment in the workplace is historically—and continues to be—an issue that disproportionality impacts women, but also that women too often bear the burden of harassment-avoidance. More can be done to shift workplace culture and expectations around sexual harassment in order to lift this burden and the BC Human Rights Commission can play a key role in this regard.

Evidence suggests that sexual harassment complaints are increasingly pursued through human rights law, which prohibits discrimination—including on the basis of sex—in a number of contexts, including employment. Education is one of the core mandates of the forthcoming Commission and there are many initiatives it can take up to promote better education, training and workplace policies to prevent and remedy sexual harassment.

Sexual harassment was defined by the Supreme Court of Canada 30 years ago in Janzen v Platy Enterprises: “[…] sexual harassment in the workplace may be broadly defined 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.”

Sexual harassment can take many forms, physical or verbal, overt or subtle. Decisions from the BC Human Rights Tribunal are replete with examples of sexually harassing conduct such as unwanted physical touching and sexual propositions of a subordinate employee. Sexual harassment is often “normalized” in industries like restaurant and service work and accepted as “inevitable” in historically male-dominated occupations and industries like construction and trades. Its existence, however, is certainly not limited to these workplaces.

The new Commission can undertake activities and initiatives to enhance education and training and workplace policies and culture. Like the Ontario Human Rights Commission, it might develop and publish its own policy to address sexual harassment. It can also create publications targeted to relevant parties—like employers—as the Quebec Commission has done. And, it can identify specific issues concerning sexual harassment and publish policy positions on these like the Ontario Human Rights Commission did with respect to sexualized dress codes, an issue that has attracted attention in BC as well.

The BC Commission could also create and publish a sexual harassment policy template that employers could readily implement in their workplace. Although WorkSafeBC requires employers to have an anti-harassment policy, a specific policy on sexual harassment in the workplace communicates the urgency and seriousness of this issue, signaling a change in expectations and institutional culture. This has even been requested as a remedy in sexual harassment complaints at the BC Human Rights Tribunal. A sexual harassment policy template would: specifically define ‘sexual harassment’; include examples of prohibited conduct so that employees clearly understand workplace expectations; and, establish a process for complaints and investigations to outline how sexual harassment will be responded to in the workplace. By creating and publishing a sexual harassment policy template, the Commission will enable employers to both evaluate existing policies and readily implement specific policies on sexual harassment with relative ease and with the confidence that the policy will be compliant with relevant laws.

Contemporary research on workplace sexual harassment and in other contexts is quite limited. The BC Human Rights Commission could undertake research to help identify the scope, nature and details of this issue as well as the challenges or difficulties that individuals who experience sexual harassment face in accessing justice. Research reports by provincial Human Rights Commissions can shape both conversation and action, and research by the BC Human Rights Commission on sexual harassment would lay a strong foundation for both policy and law reform and for legal and broader education.

Ideally, the forthcoming Commission will undertake multiple activities and initiatives like those suggested above in order to have a meaningful impact to address the issue of sexual harassment, both in and outside of the workplace. As noted above, other provinces have already taken steps in this regard. As the BC Commission takes shape and considers its first actions and priority areas, it should put sexual harassment at the top of the list.

Topics: Employment & labour, Law & legal issues, Women