SEXUAL HARASSMENT AND CRIMINAL POLICY (or the lack thereof)

 

Sexual harassment is not a crime in Canada. It is a crime in some parts of Europe and Latin America. Sexual Harassment is a form of sexual abuse and unwanted sexual attention. Sexual harassment should not be confused with regular social relations between co-workers. It is behavior that is coercive, forced, threatening or unwanted. It is the act of someone bothering you by saying or doing unwanted/unwelcome things of a sexual or gender associated nature. Such as touching inappropriately, making insulting jokes or remarks about women, men or same sex couples, making sexual demands or suggestions, staring at or making unwelcome comments about you body, displaying sexually offensive pictures, being verbally abusive to you because of your gender, and physical assault.

 

Sexual harassment it most often directed towards women and can sometimes lead to violence.  Sexual harassment is often an attempt by one person to exercise power over someone else.  Most frequently perpetrated by a supervisor, co-worker, landlord or a service provider.  People who harass others usually play it off as if they are teasing or joking around with that person. 

 

The most important thing to point out is if it is mutual, or one-sided. Are both people comfortable with it? If one person feels ashamed threatened or uncomfortable by sexually charged exchanges, that is harassment. It can make the work environment very stressful for the person being harassed. It can happen in an office, on the plant floor, in staff rooms or washrooms. Very often, men and women have different views of informal sexual interchanges like joking and flirting. This is because our society generally treats women as objects that are available for men's pleasure.

 

 

Sexual harassment is unwanted attention of a sexual nature by a person(s) who knows or ought reasonably to know that the attention is unwelcome to the recipient(s). It can be defined as “any sexually-oriented behaviour of a deliberate or negligent nature which adversely affects the working or learning environment. It may involve conduct or comments that are unintentional as well as intentional.” Thus, it is defined by the impact of the behaviour on the recipient, not the intent of the perpetrator. Sexual harassment is discrimination on the basis of sex, sexual orientation and/or gender and is prohibited under the Nova Scotia Human Rights Act.

There are two types of sexual harassment, poisoned environment and quid pro quo.

POISONED ENVIRONMENT

Poisoned environment sexual harassment discriminates against individual(s) on the basis of sex, gender or sexual orientation by creating an intimidating, hostile and/or offensive environment. This is the most common type of sexual harassment. It usually involves a pattern of persistent or repeated behaviour such as crude or offensive jokes, sexual comments, displays of offensive material and/or stereotyping on the basis or gender or sexual orientation. For example:

QUID PRO QUO

Quid pro quo means “this for that”. It involves implied or expressed promises of reward for complying with sexual solicitations or demands or implied or expressed threats of reprisal or actual reprisal for refusal or failure to comply with sexual demands. This type of harassment is usually initiated by a person(s) with power over a person(s) with less power. Thus, the recipient is in a vulnerable position. It may take the form of an overt offer or involve subtle pressure. For example:

Sexual harassment includes, but is not limited to:

a.        a.       sexual solicitation or advance of a repeated, persistent or abusive nature made by a person who knows or ought reasonably to know that such solicitation or advance is unwanted;

b.       b.      implied or expressed promise of reward for complying with a sexually-oriented suggestion;

c.        c.       actual reprisal or denial of opportunity, or an expressed or implied threat of reprisal or denial of opportunity, for a refusal to comply with a sexually-oriented suggestion;

d.       d.      sexually-oriented remarks or behaviour on the part of a person who knows or ought reasonably to know that such remarks or behaviour may create a negative psychological or emotional environment for work, study or participation in a University-related activity or program.

The Nova Scotia Human Rights Act states that “no person shall sexually harass an individual” (section 5[2]). It defines sexual harassment as (section 3[o]):

         I.               vexatious sexual conduct or a course of comment that is known or ought reasonably to be known as unwelcome,

II.                        a sexual solicitation or advance made to an individual by another individual where the other individual is in a position to confer a benefit on, or deny a benefit to, the individual to whom the solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome, or

III.                    a reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.

The Act prohibits retaliation against persons who have brought forth complaints of sexual harassment. “No person shall evict, discharge, suspend, expel or otherwise retaliate against any person on account of a complaint or an expressed intention to complain or on account of evidence or assistance given in any way in respect of the initiation, inquiry or prosecution of a complaint or other proceeding under this Act” (section 11).

SEXUAL HARASSMENT CAN INCLUDE

VERBAL:

NON-VERBAL/NON-CONTACT:

PHYSICAL CONTACT:

SEXUAL HARASSMENT IS NOT

Sexual harassment does not mean that sexuality or sexual issues must never be discussed in a work or study area or that they cannot be areas of legitimate academic inquiry. Discussions of scholarly research on sexuality in the classroom, for example, would not normally constitute sexual harassment. However, when discussion of sexuality is inappropriate in content or presentation style to the setting or the individuals involved, this may create a situation in which sexual harassment may ensue.

The Canada Labour Code and Sexual Harassment

The Canada Labour Code applies to those who perform a function or duty on behalf of the government of Canada. This includes most federal Crown Corporations and federal Special Operating Agencies; private businesses which are necessary for the operation of a federal Act. It also applies to federal undertakings or businesses

Definition of "sexual harassment"
247.1 In this Division, "sexual harassment" means any conduct, comment, gesture or contact of a sexual nature

Right of employee
247.2 Every employee is entitled to employment free of sexual harassment.

R.S., 1985, c. 9 (1st Supp.), s. 17.

Responsibility of employer
247.3 Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment.

 

 

SEXUAL HARASSMENT AND CRIME IN WESTERN EUROPE 

Unlike common law countries, modern civil law jurisdictions have criminalized or are in the process of criminalizing sexual harassment behaviors. Thus, for example, Spain penalizes sexual harassment, which is described as “soliciting favors of a sexual nature for oneself or for a third party, within a continuous or habitual labor, education, or other relation involving services, thereby provoking the victim an objective and seriously intimidating, hostile or humiliating, situation.” The literature and legislation outside the criminal law sphere identify two types of sexual harassment: hostile or poisoned environment and quid pro quo. In a poisoned environment people are discriminated against on the basis of sex, gender or sexual orientation by creating an intimidating, hostile and/or offensive environment. It usually involves a pattern of persistent or repeated behavior, such as crude or offensive jokes, sexual comments, displays of offensive material and/or stereotyping on the basis or gender or sexual orientation. Quid pro quo involves implied or expressed promises of reward for complying with sexual solicitations, demands, threats of reprisal, or actual reprisal for refusal to comply with sexual demands. This type of harassment is usually initiated by a person with power over a person with less power. While the hostile environment is the most common type of sexual harassment, civil law jurisdictions have mainly opted for criminalizing only quid pro quo sexual harassment. The criminalization of the creation a hostile environment is limited only to the extent that such an environment has been created through the solicitation of favors of a sexual nature.

 

In the sexual harassment offense in civil law jurisdictions, the protected legal interest, whose violation or negation causes social harm, is both sexual freedom and accepted conditions of respect in labor, education or similar settings. This offense thus protects privacy and dignity so that people engaged in labor or educational relations may freely develop their expected tasks. The structure of the definitional terms of the sexual harassment offense is active and willful. The objective aspect of the willful definitional terms includes the result, the descriptive elements, the normative elements, the agents or actors- both active and passive- and a causal connection between the act and the result. The objective aspect of the definitional terms is the solicitation of sexual favors in a continuous or habitual labor or education relation, which provokes the victim an objective and seriously intimidating, hostile or humiliating, situation.

 

The central aspect of the definitional terms is the request of favors of a sexual nature. Thus, the offense does not penalize situations that do not involve the actual solicitation of physical contact. So, for example, if a supervisor implies that a promotion will not be recommended unless his or her employee agrees to date or simply go out with the supervisor, the supervisor will not have committed the sexual harassment offense as no actual physical, sexual favor has been solicited. Another element of the definitional terms is the number of requests or solicitations. The use of the plural noun implies that there must be at least more than one request.

 

While the labor and educational settings are clear concepts that do not need any clarification, the notion of ‘other relation involving services’ is somewhat vague. In a case involving sexual assault between the mayor and a city counselor –which does not fall within a labor relation under Spanish law- the courts held that the relation qualifies as other relation involving services and convicted the mayor who persistently requested the victim to date him and to have sexual relations with him. The result of the definitional terms is an objective and seriously intimidating, hostile or humiliating, situation. The test to determine whether the victim feels humiliated or intimidated is objective.

 

In Spain, sexual harassment may be committed by people on a same hierarchical position as the victim. For example, if an employee requests another co-worker a sexual favor, thus causing the victim to feel humiliated, then that employee has committed sexual harassment. However, the sexual harassment offense is aggravated when a person who is in a position of power in an employment, education or other hierarchical relation commits sexual harassment by profiting from that position or by expressly or impliedly threatening the victim to cause damage related to the victim’s legitimated expectations. In Spain, the sexual harassment offense is also aggravated when the victim is particularly vulnerable because of age or illness.