How would you categorize harassment?
How would you categorize harassment? Often people will have their own idea of what constitutes sexual abuse in the workplace, but do you really know the true, legally binding, definition?
“Harassment does have a particular definition, both under Human Rights legislation and under Common Law,” explained Alix Herber, partner at Fasken LLP – and speaker at our upcoming webinar ‘Investigating workplace harassment’.”
Essentially, it’s unwelcome and vexatious conduct. Whilst in most cases harassment is constituted by ongoing incidents, Alix revealed that case laws show harassment can be found on the basis of one singular incident.
“The test is really the nature of the conduct,” explained Alix. “The intent behind the conduct is actually not relevant from a decision makers perspective. When people say to me ‘Oh I didn’t mean to make my colleague uncomfortable by calling her a bimbo’ – it doesn’t matter from a legal standpoint. An adjudicator would simply say that the intent behind it was irrelevant - what matters is if the conduct was vexatious.”
With the increasingly heightened sensitivity following the #MeToo movement, employers’ failures to adequately respond to a harassment claim, in particular a sexual harassment claim, can now result in much higher damage awards that they would have a years ago.
“What we’re seeing right now, and what we have been seeing since the movement first gained momentum, is that tolerance for this type of behaviour is very limited. Courts and adjudicators, especially in the human rights world, are responding by rewarding heft damage rewards to the victims. Especially, in my view, when these cases involve vulnerable individuals.
This this dependence could stem from having a limited education, having a low income, a lack of work permits etc.. If they were then ultimately abused by the owner or a senior person in that organization., the tribunal could very well order a substantial amount of money.
Before the #MeToo movement, Alix told HRD Canada sexual harassment claims would normally settle for around $10,000-$20,000. Now, the expectation is much higher because the tolerance is being examined with a lot more scrutiny that ever before.
Make sure you’re not caught out by unforeseen sexual harassment claims and learn the best practice for dealing with allegations at Alix’s upcoming webinar.