Elements of Workplace Harassment or Violence

The elements of workplace harassment and violence under the Canada Labour Code are:

• There is a behaviour (comment, conduct or action).
• It takes place in the workplace.
• It is directed at an employee.
• It can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.

Workplace harassment under the Canadian Human Rights Act has these elements:

• There is a behaviour based on a prohibited ground.
• It takes place in the workplace.
  
• It is unwelcome.
• It offends or humiliates the person.

The Canada Labour Code definition of harassment and violence includes comments, conduct, or actions. The behaviour can be a single incident or a series of incidents. Harassment can take many forms but can be categorized as verbal, physical or visual. The words used in the Canada Labour Code cover all these types of workplace harassment.

• Verbal (comment) harassment covers anything that is said or communicated to a person in writing, online or otherwise.
• Physical (conduct or action) covers anything that involves physical contact.
• Visual (conduct or action) covers any printed material (poster, picture), online post (social media post, email, photo, picture, memes), body language and gestures.

The behaviours that can be harassment are not set out in the Canadian Human Rights Act, but a broad range of behaviours are covered. Under the Canadian Human Rights Act the behaviour generally must be something that persists over time but serious one-time incidents can also be harassment.

To be covered under the Canada Labour Code the behaviour must take place in the workplace. This does not mean that it has to take place on work premises. Workplace harassment or violence can take place anywhere an employee is working for their employer. Workplace harassment or violence 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 an employee's home if the employee is authorized to work from home
  

Employees and individuals who are not paid employees but who are working for experience and training (such as interns) are both covered under the Canada Labour Code. They can make a complaint for up to 3 months after they leave the workplace. This can be extended if the person could not make the report because of trauma or a health condition.

The Canadian Human Rights Act protections apply to employees as well as others such as customers or renters. Complaints under the Canadian Human Rights Act can be made for up to 12 months after the incident. This can be extended in some circumstances such as when the person has been ill for an extended period.

Under both the Canada Labour Code and the Canadian Human Rights Act workplace harassment or violence is always something that has a negative impact on the person. Both laws include behaviours that offend or humiliate the person. The Canada Labour Code also includes behaviours that cause physical or psychological injury or illness.

The Canada Labour Code specifically looks at whether the behaviour could reasonably be expected to have a negative impact. There are a number of things that can indicate that a negative impact would reasonably be expected including:

• The person objected – however the fact that a person did not object does not excuse the behaviour.
• The nature of the remarks or actions themselves can show that a negative impact could be reasonably expected.
• The fact that the other person did not respond at all can also show that a negative impact could be reasonably expected.

The Canada Labour Code specifically includes harassment or violence of a sexual nature and sexual harassment is always discrimination on a prohibited ground under the Canadian Human Rights Act. Determining if the behaviour is of a sexual nature will depend on what happened, when and how. The following are some examples.

• using the Internet to make sexual threats, or to harass or exploit someone sexually
• abusing authority by soliciting a sexual or romantic relationship from a subordinate, or making social invitations with sexual overtones to a subordinate
• making abusive or derogatory remarks or jokes about someone’s gender, gender identity or gender expression, sex or sexual orientation (for example, homophobic remarks)
• sexual invitations or requests in return for a promise of a reward (such as a promotion)
• displaying offensive posters, cartoons or images of a sexual nature such as nude or partially nude depictions or depictions of sex
• sending inappropriate electronic communications (for example, sexually explicit emails)
• 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
• groping, grabbing, petting, massaging, hugging, kissing
• blocking peoples’ way, looking people up and down, standing too close, cat calling, whistling, gestures that have a sexual connotation