Today we will hear from a local lawyer on the topic:
Disclaimer: I’m a lawyer. But I’m not this kind of lawyer. I’ve never taken on a sexual harassment claim nor defended one. While I think it’s useful to refer to the law in issues like these, I’m no more a legal expert in this area than the average reader.
When I think about the issue of sexual harassment in the workplace (as so many of us are right now), I’m seeing it from the employer’s perspective and from the male perspective. I think the recent happenings in Hollywood, in American politics and in universities around the globe are forcing those of us with those perspectives to look at the issue of workplace harassment with a broader perspective than we may have previously.
The Community Legal Assistance Society of BC (CLAS) has an excellent breakdown of the legal definition of sexual harassment in the workplace here. The key elements given to us by the case law are:
a. Conduct of a sexual nature which is gender based,
b. Conduct that is unwelcome, and
c. Conduct that detrimentally affects the work environment or leads to adverse job- related consequences.
From an employer’s perspective, I have tended to see these things in pretty black and white terms for myself. I’m the boss. Marital status notwithstanding, it’s clearly inappropriate for me to engage with any of my staff in any of the conduct that has elements “a” and “b” above, because doing so carries far too high a risk of also becoming “c”. And I feel the same way about the responsibilities of employees down the chain. However, I’ve never had to consider whether sexual advances between peers in the workplace are acceptable and though it’s never become an issue for me, I’ve failed to recognize some important issues in defining workplace sexual harassment.
The CLAS page notes that “consensual conversations about sex are not prohibited in the workplace” but I’ve always been extremely uncomfortable when that sort of talk is engaged in in the office, even when it seems clearly consensual. The law appears to support the idea that in such situations, if everyone is “participating” the onus is on the person who feels uncomfortable to raise an objection. I think for a very long time, this seemed fine to me. It’s all in good fun right?
Recent famous events have me thinking a little harder about this. As I said I’m often uncomfortable in these situations. I’m the boss. If anyone has comfort in the power to say “this is inappropriate and I don’t want to hear it here” it’s me – and I’m still reluctant to do so, simply out of a desire not to “spoil everyone’s fun”. If I feel this way, what is the likelihood that the men and women working at the lowest positions feel completely unable to express their discomfort? Even if they are joining in the “banter” they may be doing so out of what they believe to be necessity. I feel now that it is ethically unfair to place the onus on them. No, I think the boss needs to be responsible. As an employer, I need to take responsibility for fostering a work environment that is free, as much as possible, of the sort of sexual talk or innuendo that may not only make feel people uncomfortable, but worse, obligated to participate.
The other thing I think I’ve never paid particular attention to is what exactly we mean by “workplace” when we talk about “sexual harassment in the workplace”. Obviously, things that occur at our physical place of work count. Meetings to conduct business, travelling in a vehicle with other staff for work, these are easy cases, few would act as if they are not “in the workplace” when they are actively engaging something “for work”. But the line begins to blur astonishingly quickly – the television and movie trope about the “office Christmas party” is a trope for a reason (there may be a chicken and egg debate to be had here, but nevertheless) and all sorts of behavior that would clearly be inappropriate at work seems to be treated, again, as all in good fun. Drinks after work may seem like an innocent invitation but may be opening the door for more intimate advances. At what point can someone safely say “we are no longer in the workplace” so these standards don’t apply?