Elements of Workplace Harassment

The elements of workplace harassment under The Saskatchewan Employment Act are:

• There is a behaviour (comment, conduct, display, action or gesture of a sexual nature in the case of sexual harassment or inappropriate comment, conduct, display, action or gesture for other types of harassment).
• It takes place in the workplace.
• It is directed at a worker.
• It is of a sexual nature and the person knew or should have reasonably known the behaviour was unwelcome; or
• It negatively affects a worker’s psychological or physical wellbeing and the harasser knows or should have reasonably known it would cause the worker to feel humiliated or intimidated and it is a threat to the health and safety of the worker; or
• It is directed at a person based on a prohibited ground of discrimination under The Saskatchewan Human Rights Code or the person’s physical size or weight and is a threat to the health and safety of the worker.

The Saskatchewan Employment Act definition of workplace harassment includes comments, conduct, displays, actions or gestures. Workplace harassment can take many forms but can be categorized as verbal, physical or visual. The words used in The Saskatchewan Employment Act cover all these types of harassment:

• Verbal (comment): Anything that is said or communicated to a person in writing, online or otherwise.
• Physical (conduct or action): Anything that involves physical contact.
• Visual (display, gesture, conduct or action): Any printed (poster, picture) or online (social media post, email, photo, picture, memes) material, body language or gestures.

The behaviour can be a single incident in the case of sexual harassment or harassment based on a prohibited ground, physical size or weight. For harassment that causes a physical or psychological injury the behaviour must be repeated or ongoing or a single incident that is serious enough that it has a lasting, harmful effect on the worker.

To be covered the behaviour must take place in the workplace. This does not mean that it has to take place on the work premises. Workplace harassment can take place outside of the walls of a traditional workplace including...

• on construction sites or field work locations
• during service/business calls to a client’s business or home
• while attending work-related conferences or workshops
• at office parties and social events
• in communications with employers, co-workers, clients or customers (calls, texts, emails)
• in workers' homes if they authorized to work from home.

Workplace harassment can also be perpetrated by people other than co-workers, supervisors or employers. Customers, clients and the general public can also be responsible for incidents of workplace harassment.

The protections against workplace harassment in The Saskatchewan Employment Act apply to workers. For these purposes workers include students, volunteers and independent contractors in the workplace. People who have left the workplace cannot use The Saskatchewan Employment Act to deal with the workplace harassment.

They can still make a discrimination complaint under The Saskatchewan Human Rights Code if it has not been more than 12 months since the incident happened. This 12-month period can be extended in some circumstances. The Saskatchewan Human Rights Code also applies to other situations such as housing and public services.

For sexual harassment the behaviour has to be of a sexual nature. Determining if behaviour is of a sexual nature will depend on what happened, when and how.

The following are some examples:

• comments about a person’s body, appearance, clothing, sex life or sexual orientation or gender identity
• discussing your sex life or anyone else’s sex life or genitals pet names or nicknames that are sexually suggestive such as darling, sugar, doll, honey, sweetie, dear
• repeated requests for dates
• unwanted sexual advances
• jokes that describe sex acts, use sexual language, involve swearing, use sexual innuendo or are about one sex, gender, or people with a certain sexual orientation
• groping, grabbing, petting, massaging, hugging, kissing
• nude or partially nude depictions, depictions of sex acts
• blocking peoples’ way, looking people up and down, standing too close, cat calling, whistling, gestures that have a sexual connotation

Sexual harassment has to be something the person knew or should have reasonably known was unwelcome. It is common for people to not speak up because they have fears about the impact this will have on their work environment or their safety. This is especially true when there is a power imbalance, such as when the harasser is in a position of authority. In those cases, the person must have very clearly and completely voluntarily agreed to the behaviour.

However, if a person has been told that their behaviour is unwelcome this is sufficient to show that it is in fact unwelcome.

The definition of sexual harassment goes beyond situations where the person has explicitly been told their behaviour is unwelcome.

Sometimes it is the nature of the behaviour itself that means the person should have known it was unwelcome. Other times it may be the circumstances or other previous interactions that could show the person should have reasonably known the behaviour was unwelcome.

The other two types of harassment in The Saskatchewan Employment Act have to be a threat to the worker's health and safety. For harassment based on causing a physical or psychological injury the person must have known or should have reasonably known it would cause the other person to feel humiliated or intimidated.