The legal definition of workplace sexual harassment differs depending where you live and what laws apply. Across North America, however, the behaviour and conduct that constitute sexual harassment are quite consistent across jurisdictions.
Generally, sexual harassment is defined as conduct or comments that are known (or should reasonably be known) to be unwelcome. The unwelcome comments or acts are based on a person’s sex and/or (depending on the laws of the jurisdiction) their sexual orientation, gender identity or gender expression. Often more than one comment or act is required to meet the definition, although if severe enough, a single event could suffice.
What kind of conduct and comments are we talking about? What exactly constitutes sexual harassment in the workplace? The answer is not always clear, leading a person to question, “have I been sexually harassed?” Or, “is the way I just behaved considered sexual harassment?”
Below are five signs of sexual harassment in the workplace, spanning from the most obvious, to the less commonly recognized. It’s important for all employees and workplace leaders (supervisors, executives, management) to understand what sexual harassment is so that it can be stamped out. Employers may be liable at law if they ignore signs and complaints of harassment, or do not make best efforts to provide a safe workplace.
Sign #1: Unwanted physical contact
Unwelcome physical acts of a sexual nature (eg. touching, pinching, patting, kissing, hugging, grabbing) can constitute sexual harassment, with sexual assault being the most extreme form.
Physical contact (hugs, touching of arm or face) is not always appreciated. What one person may see as an “innocent” expression of friendship could be viewed as an unlawful invasion of personal space by the recipient. Err on the side of caution in the workplace.
Sign #2: Being subjected to sexualized language, jokes or images
Sexually oriented gestures, noises, remarks or jokes, or comments about a person’s sexuality or sexual experience are not appropriate in the workplace and create a hostile work environment. Any of this activity could be in-person, or in phone calls, text messages, emails, videos, Slack, and social media posts.
Unlawful harassment is not limited to the physical workplace. With the prevalence of technology and communicating with colleagues during non-work hours, incidents can occur away from the “actual” workplace. Sending sexualized messages or images to colleagues likely violates other workplace policies as well.
Sign #3: “Quid Pro Quo” Demands
Another form of unlawful sexual harassment is often referred to as “quid pro quo” (Latin for “something in return for something”). This includes (unwelcome) requests for dates, or sexual activity by a workplace “superior,” accompanied by a threat or indication that a rejection of, or submission to the advance will affect the person’s job security or terms.*
For example: “I know you are happy I let you leave early to pick up your kids at daycare during the week… Now I want you to make it up to me by putting in some regular overtime in my bedroom on the weekends.”
People work to support themselves and their families. Threats that their job is at stake if they refuse unwanted sexual demands from a boss or manager makes victims of workplace sexual harassment extremely vulnerable. This dynamic also means victims are less likely to report the harassment.
Sign #4: Inappropriate comments or conduct based on gender, gender identity or sexual orientation
Statistically, women are much more likely than men to be victims of workplace sexual harassment. However, anyone (men, women and transgender/ gender non-conforming persons) can be a target of sexual harassment, and all have a right to be free from such harassment in the workplace.
In many jurisdictions, workplace sexual harassment includes harassment based on gender, gender identity and sexual orientation. Demeaning, humiliating conduct or remarks based on a person’s gender identity (eg. whether someone conforms to gender “norms”) or sexual orientation threaten a positive, respectful workplace culture.
Sign #5: Retaliation reprisal when reporting a complaint
What good are legal rights if you can’t claim and enforce them? People who have been sexually harassed at work must be able to make a complaint and participate in an investigation and/or legal proceedings without fear of reprisal or retaliation. This right is set out in in legislation and policies (including “whistleblower” laws) in most North American jurisdictions.
Employers must take steps to prevent any form of sexual harassment in the workplace. This includes establishing complaints and investigations procedures that encourage those being harassed to bring a complaint without fear of reprisal.
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* In the United States, “quid pro quo” is referred to in the Equal Employment Opportunity Commission (EEOC)’s Guidelines on Discrimination Because of Sex (citing 29 C.F.R. § 1604.11(a)) as occurring when “submission to or rejection of … [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual…”
Similarly, the definition of sexual harassment in both Ontario’s Human Rights Code Human Rights Code, R.S.O. 1990, c. H.19 and Occupational Health and Safety Act, RSO 1990, c O1 includes:
- a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
- a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.