This is just general information, not legal advice. If you need legal advice about your specific situation, we urge you to find a lawyer who can help you.
If you are being sexually harassed at work in Canada, there are two main types of laws that apply to you.
- employment and labour laws, designed to protect workers
- human rights laws, designed to protect everybody
Those laws are all different. But they’re all intended to protect against harassment on the basis of sex, sexual orientation, gender identity and gender expression. And yes, all four of those attributes matter in Canada, everywhere in the country. Decades ago, the laws only prohibited sexual harassment on the basis of sex, but later sexual orientation was added, and then gender identity and gender expression as well.
As they interpret the laws, judges generally ask the same types of questions.
Did the harassment happen on the basis of your sex, sexual orientation, gender identity, or gender expression?
Sexual harassment laws in Canada prohibit harassment on the basis of sex, sexual orientation, gender identity, or gender expression.
Example of sexual harassment on the basis of sex:
A group of men in a bar sexually harass their server by commenting on her looks and repeatedly propositioning her.
Example of sexual harassment on the basis of sexual orientation:
A man sexually harasses another man by making fun of him for being gay.
Example of sexual harassment on the basis of gender identity:
A group of men sexually harass a trans woman by asking her questions about her gender and using anti-trans slurs.
Example of sexual harassment on the basis of gender expression:
A supervisor sexually harasses a female employee by telling her to wear shorter skirts and higher heels.
If the harassment is based on your sex, your sexual orientation, your gender identity, or your gender expression, that means it qualifies as “sexual.”
Was the behaviour unwelcome?
This is a simple test:
- Did the behaviour make you unhappy?
- Did you dislike it and wish it would stop?
- Did it make you feel offended or demeaned?
- Did you find it shocking or vulgar?
- Did you feel like you were being abused?
If you answered yes to any of those questions, that would suggest to a judge that you were being harassed.
Would a “reasonable person” find this behaviour unacceptable?
Even if you answered yes to the questions above, a judge wants to know whether a so-called reasonable or average person would feel the same way.
For example, a typical reasonable person might think that a co-worker asking someone out on a date is okay, but a co-worker texting someone pornographic images is not. A judge might then rule that “texting pornographic images” is harassment, but asking someone out once is not. Even if both those things felt like harassment to you, the “reasonable person” standard would suggest to a judge that they’re not the same.
Sometimes this question is what a “reasonable person,” a “reasonable woman,” a “reasonable gay man,” or some other kind of person might think. Its purpose is always the same: to ask whether somebody reasonable, experiencing a particular kind of behaviour, would consider it to be harassment.
Did the bad behaviour happen only once or more often?
Normally, for behaviour to count as sexual harassment, it has to happen more than once. But if the behaviour was really bad—like if your boss literally told you he would fire you if you didn’t have sex with him—once might be enough for it to count under the law.
That’s how the laws work in general.
To know which laws apply to you, you need to know whether you work in an industry that’s provincially regulated or federally regulated.
Read Am I a federally regulated worker? (And why it matters)
