Sexual Harassment – Is reporting a career-limiting move?

Sexual harassment is back in the news for the second time in 2017.  In January, we blogged on this issue when the allegations of harassment against Donald Trump were in the news, and now it is the entertainment industry and the #metoo hashtag is trending.

It is not a surprise to us at Forte Law that workplace sexual harassment is widespread. We see clients almost every week who have been sexually harassed at work. So far, it has only been women who have sought our advice, but it can happen to men too.  The harassing conduct itself seems endless in its variety, from “compliments” of a sexual or suggestive nature, to propositions with negative consequences for refusal, and even some clients who have been repeatedly sexually assaulted at work. There is no doubt that most workplace sexual harassment goes unreported. Many clients only reach out to us after weeks, months or even years have passed.  Most of our clients who have experienced sexual harassment are concerned that breaking their silence will be a career-limiting, or even a career-ending move.  Silence is not the only option.

Talking to a lawyer is confidential

Some clients worry that their employer or harasser will find out that they contacted us.  Any information that you share with a lawyer in a lawyer-client relationship is confidential. We are required by our rules of professional conduct to maintain confidentiality.  Consulting a lawyer is not breaking silence. After speaking to an employment lawyer about the options, you can decide that you would like to keep the harassment to yourself.  That is your right and you maintain that control.

There are lots of ways to deal with sexual harassment

When we advise clients who have been subjected to workplace sexual harassment, we first find out their goals.  Those goals are unique to each client, and often depend on whether the client is still working for the company where the harassment occurred.  We always review the options for legal action, and there are several.  The most common forum for legal action is a Human Rights Complaint to the BC Human Rights Tribunal.  The Tribunal has broad powers to award remedies for sexual harassment, which include financial remedies but also reinstatement of employment and other types of awards.  Sexual harassment can also be constructive dismissal of employment, if the environment is so hostile that you have to quit.  Constructive dismissal can be pursued with a civil claim (lawsuit) for wrongful dismissal.  Worksafe BC can also address sexual harassment.  Some forms of sexual harassment including sexual assault are criminal and can be reported to police.

Starting legal action is only one of many ways to deal with sexual harassment at work, and is generally a last resort.  Other ways to respond to harassment include telling the harasser to stop, finding an ally in the organization to confide in confidentially, making a complaint through an internal harassment policy or leaving the organization for a new job prior to reporting. We have had several clients over the last few months who have reported sexual harassment to their employers after consulting with us, and the employers have stepped up and tackled the issue.

Thinking about getting legal advice?  Don’t wait.

There is a deadline of one year to file a Human Rights Complaint about workplace sexual harassment with the BC Human Rights Tribunal. This is within one year of the last incident of harassment. There are some circumstances where complaints have been accepted past the deadline, but in most cases, they are not.  One year can pass quickly.  Don’t wait to seek advice, and don’t worry about being judged because you are not alone.*

*this blog has been updated. The BC Human Rights Code now allows complaints to be made within one year (rather than within 6 months).

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Sexual Harassment – BC law is clear even if the news is not

Human Rights Basics Series

I have advised many clients about sexual harassment issues since I began practicing law in 2004. It never ceases to amaze me the things that people think it is OK to say and do at work. The news stories and debate about sexual harassment during the Trump campaign confirmed to me that there is still a need for education and information on the important issue of sexual harassment. In BC, the law is actually pretty clear when it comes to workplace sexual harassment.

Workplace Sexual Harassment is Against the Law

Now, that has got to be one of the most simple and straightforward statements that a lawyer has ever made. In British Columbia, one of our provincial laws is the BC Human Rights Code. Section 13 of the Human Rights Code states that discrimination at work based on sex (among other things) is not allowed. This makes sexual harassment at work against the law.

Elements of Workplace Sexual Harassment

The basic elements of the legal definition of workplace sexual harassment in BC are also not under debate. The elements were established by the Supreme Court of Canada in 1989 in a case called Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, as follows:

Sexual harassment in the workplace is 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.

Unwelcome Conduct

For conduct to be sexual harassment, it must be unwelcome. I often get the question, if coworkers are involved in a romantic or sexual relationship, is this sexual harassment? The Human Rights Code does not prohibit consensual relationships at work, as they are welcomed by both participants.

Conduct of a Sexual Nature

Sexual harassment takes place in many forms and can include everything from comments, emails, texts or sexual jokes to sexual propositions, persistent romantic pursuit, sexual touching or assaults.

Negative Impact on Work or Work Environment

Workplace sexual harassment has a negative impact on the victim. The negative impact can take many forms, from embarrassment and humiliation, to termination of employment, or differential treatment at work.

What to do about Workplace Sexual Harassment

Every workplace should have a harassment policy. If you are an employee dealing with sexual harassment, the first thing to do is look at your employer's harassment policy, which should set out a process for dealing with harassment and making a complaint. You may also want to consult with your union or an employment lawyer (like me) for advice.

If you are an employer, and you don't have a policy dealing with sexual harassment, you should speak to an employment lawyer (like me) about putting one in place. A policy including an internal harassment complaint process gives employers the chance to address these issues quickly and internally, rather than employees having to resort to complaints to the BC Human Rights Tribunal.

Tags: Workplace BC, BC sexual harassment law, Human rights bc workplace, BC work laws, Sexual harassment workplace, Sexual harassment laws BC

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Enter your email address below to receive our legal information updates direct to your inbox