By Cayleigh Shiff, SHARP Workplaces Lawyer

When you think of workplace sexual harassment, what is the first thing that comes to mind? It might be a supervisor using their power to exploit an employee; however, workplace sexual harassment doesn’t just involve bosses and coworkers. Power is always a part of workplace sexual harassment, and people other than your boss can hold power and use it to cause harm. Power imbalances exist in our society between men and women and gender-diverse people. Other differences, such as ethnicity, age, and ability, can overlap to intensify power imbalances. These power imbalances play a role in sexual harassment. As a result, you may experience sexual harassment from bosses, coworkers, including coworkers more junior to you, or from customers, clients, contractors, or other people connected to your job.

First Stop: What is Workplace Sexual Harassment?

Workplace sexual harassment is a form of discrimination. Everyone has the right to be free from discrimination at work, whether it’s full- or part-time employment, temporary or seasonal work, contract work, under the table, or volunteer work and internships.[1] Workplace sexual harassment is any behaviour connected to work that is:

  • unwelcome – it’s unwelcome if the average person would expect it to be unwelcome or if it results in negative work-related consequences. You do not have to actively object or tell your harasser their behaviour is unwelcome;
  • of a sexual nature – this means it involves a person’s sex, gender, gender identity or expression, or sexual orientation; and
  • leads to negative job-related consequences – this can include consequences ranging from no longer feeling comfortable or safe in your work environment, being fired or having your hours reduced. [2]

Examples of behaviour that may be considered sexual harassment include:

  • sexual comments, teasing, jokes, or compliments about appearance or dress;
  • sexual gestures, staring, leering;
  • showing pornographic or sexually suggestive material in person or through e-mail, chat, text messages, video-conferencing;
  • repeated, unwanted invitations;
  • physical contact, such as touching or hugging;
  • comments about a person’s gender identity or expression;
  • any behaviour a person feels they must accept to get hired, keep their job, or get a promotion;
  • sexual assault; and
  • microaggressions, which can be verbal or nonverbal, intentional or unintentional negative messages targeting someone based on their membership to a marginalized group.

Examples of gendered microaggressions could include:

  • repeatedly using incorrect gender pronouns;
  • assuming a woman can’t do or isn’t qualified for traditionally-male dominated work;
  • asking a woman when she’s going to have kids;
  • telling a woman she looks “so young” or assuming she is in a lower-ranking position;
  • making assumptions about someone’s sexual orientation;
  • a supervisor assigning tasks based on gender roles and stereotypes;
  • addressing women as “sweetheart” or using other unprofessional nicknames.

Who Can be a “Harasser” in Workplace Sexual Harassment?

A harasser could be anyone connected with your job, including:

  • supervisors;
  • subordinates;
  • co-workers;
  • contractors or consultants;
  • clients or customers;
  • volunteers; and
  • other people connected to your work.

The definition of workplace sexual harassment makes it clear anyone could be responsible for sexual harassment.

Some Occupations at Greater Risk of Workplace Sexual Harassment from Non-Coworkers

Workers in some types of occupations are at greater risk of experiencing workplace sexual harassment by people other than their coworkers. Workers in jobs that involve spending a lot of their day with clients, customers, or contract workers, are more vulnerable to experiencing workplace sexual harassment from someone other than a supervisor or coworker.

According to a report by Statistics Canada, women in sales and service jobs are more likely to experience inappropriate sexual behaviour than women in many other jobs. Over half (53%) of women in sales and service jobs who reported experiencing inappropriate sexual behaviour at work in the last year said that at least one incident was by a customer or client.

It’s the responsibility of your employer to make sure your work environment is safe and free from harassment by both coworkers and non-coworkers. No matter who it comes from, it’s important to take all sexual harassment at work seriously.

Why Does it Matter if the Harasser is Connected to my Work?

If the sexual harassment is connected with work, the person who experienced the harassment may have several more options to address the unwanted behaviour than they would if the harasser was not connected to their work.

Legal options for dealing with workplace sexual harassment could include:

  • a Human Rights Tribunal complaint;
  • a WorkSafeBC claim or complaint;
  • a union grievance;
  • a civil lawsuit for constructive dismissal; or
  • filing a police report.

Is This Workplace Sexual Harassment?

Employers have legal obligations to protect workers from sexual harassment.[3] Let’s consider some examples.

Scenario 1: Unwanted attention on a jobsite

An accounting firm hires a Painters-R-Us Inc. to paint their offices, and one of the accountants stares at Melinda, one of the painters, and tells her she looks beautiful every time he passes her in the hall. This is workplace sexual harassment. If Melinda told her employer she felt unsafe and her employer did nothing to address her concerns, Melinda could have a few legal options available to consider. For instance, she may be able to file a complaint with the Human Rights Tribunal for discrimination based on sex, file a civil action for constructive dismissal if she felt she could no longer work there because she was unsafe or report it to WorkSafeBC’s prevention line if the employer did not have, or follow, a bullying and harassment policy.

Scenario 2: Employer failing to address sexual harassment by customer

Amara, a unionized grocery store cashier feels uncomfortable with the way one of her regular customers treats her. When Victor comes into the store he always stops to talk to Amara for long periods of time. He asks her questions about her personal life, whether she has a boyfriend, and what she likes to do on dates. Lately, he has started asking Amara if she will go out with him. She told her manager about what’s happening. Her manager told her there is nothing he can do because Victor is a customer, and he has no control over what Victor says. Amara has started feeling distressed about going to work and her doctor diagnosed her with an anxiety disorder.

Amara’s manager is not providing a safe workplace. Victor’s comments are workplace sexual harassment and Amara’s employer must take steps to protect her from the harassment. Like Melinda, Amara has legal options to consider. She could discuss this with her union representative who may get her employer to investigate and make sure Amara is safe at work. Her union may start a formal process by filing a grievance against the employer. Because Amara has been diagnosed with a mental health condition connected to the sexual harassment, she can claim benefits from WorkSafeBC. Amara could also file a complaint in the Human Rights Tribunal or report the harassment to the WorkSafeBC prevention line.

Where to Get Help

Knowing whether sexual harassment is workplace sexual harassment will affect whether and how the law can help. All workers have a right to a safe, harassment-free workplace. No one should have to tolerate sexual harassment in their job, whether it’s from a boss, coworker, or anyone else. While some jobs tend to put workers at a higher risk of workplace sexual harassment from non-coworkers, workplace sexual harassment can happen in any type of work. All employers must take steps to ensure their workplaces are safe and harassment-free.

People experiencing workplace sexual harassment can access the SHARP Workplaces Legal Clinic for free legal advice by calling: 604-673-3143 or toll-free: 1-888-685-6222, emailing SHARPWorkplaces@clasbc.net or by going to clasbc.net/SHARPWorkplaces.

[1] Human Rights Code, R.S.B.C. 1996, c. 210, s. 13.

[2] Janzen v. Platy Enterprises, [1989] 1 SCR 1252, 59 DLR (4th) 352.

[3] Workers Compensation Act, RSBC 2019, c. 1; Canada Labour Code, RSC 1985, c. L-2; Human Rights Code, R.S.B.C. 1996, c. 210; Canadian Human Rights Act, R.S.C. 1985, c. H-6; Canada Labour Code, R.S.C. 1985, c L-2; Employment Standards Act, R.S.B.C. 1996, c. 113.

Photo by Kyle Ryan on Unsplash

NOTICE: SHARP Workplaces Legal Advice Clinic ceased providing legal services in March 2024 due to an end of funding, and is NOW CLOSED. 

If you experienced sexual assault and need legal advice  contact Stand Informed legal advice services.