Sexual Orientation and Harassment in the Workplace

 

Update: 

Check out this pdf on Bullying in the Workplace:

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What is Workplace Harassment?

The Occupational Health and Safety Act (as of June 15, 2010) defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."

This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, (see below) as well as "psychological harassment" or "personal harassment."

Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.

Workplace harassment, if left unchecked, can escalate. In some cases, it can lead to physical violence or even death.

Workplace Violence Legislation (Bill 168), full text

Human Rights Code, Sexual Orientation, and Employment

Human Rights Code

R.S.O. 1990, CHAPTER H.19

Employment

5.  (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5).

Harassment in employment

(2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6).

 What protection does the Ontario Human Rights Code offer?

The Ontario Human Rights Code (the Code) is a law that provides for equal rights and opportunities and recognizes the dignity and worth of every person in Ontario. The Code makes it against the law to discriminate against someone or to harass them because of their sexual orientation or their marital status. This includes same-sex relationships.

This right to be free from discrimination and harassment applies to employment, services and facilities, accommodation and housing, contracts and membership in unions, trade or professional associations.
A person cannot be treated unequally or harassed in these areas because he or she is gay, lesbian, heterosexual or bisexual. It is also illegal to discriminate because someone is in a same-sex relationship.
Homophobic conduct and comment are prohibited as part of the Code’s protection against discrimination based on sexual orientation, no matter what the target’s sexual orientation is, or is perceived to be.

When is it harassment?

Harassment is making demeaning or hurtful comments or actions that are known or should be known to be unwelcome. Some examples are:

• A landlord tells a lesbian tenant to “go live with people like yourself because you do not belong here.”
• Homophobic jokes or hints being made about a person’s sexual orientation or same-sex relationship.
• Displaying disrespectful signs, caricatures, cartoons or graffiti.

Harassment can happen even if the comments or actions are not specifically about sexual orientation.
Example: In a workplace that has a history of homophobic attitudes, the only two “out” gay workers are targeted repeatedly for ridicule and practical jokes. In the past, other gay workers have quit due to similar treatment. Based on the circumstances, the remaining “out” workers could argue that they are being harassed based on their sexual orientation, even though no one has directly referred to the fact they are gay.
Inappropriate behaviour does not always have to happen repeatedly to be against the law. A single incident might be serious enough.

In some environments, homophobic comments may be common, and people assume that everyone there is heterosexual. But this is often not the case, and comments like “that’s so gay” can cause hurt and stress to people who have not disclosed that they have a different sexual orientation.

Employers, housing providers, service providers and others must make sure that their environments and services are free from discrimination and harassment. They must take action if they know or should have known about harassing behaviour based on sexual orientation or a same-sex relationship. This action includes not allowing the use of homophobic language, even if nobody complains about it.

When is it discrimination?

Discrimination happens when a person is treated unequally or differently because of sexual orientation or a same-sex relationship, and it results in a disadvantage to that person. It is also against the law to tell others to discriminate because of sexual orientation. Discrimination can result from a person’s actions or from an organization’s rules and policies.
Example: An employee is denied promotions, training or is fired because of her sexual orientation or same-sex relationship.
Example: A company’s health insurance plan covers the needs of an opposite-sex partner but not a same-sex partner.
People cannot be denied services because of their sexual orientation, despite how the service provider or other customers might feel.
Example: A restaurant will not serve a same-sex couple, because the manager thinks its other customers will not want them there.

Harassment can lead to violence

Silence or doing nothing will not usually make the harassment go away, and sometimes such behaviour can lead to violence. If you feel uncomfortable or threatened, speak to a person in authority about it (a supervisor, the owner of the store, etc.).
You can contact the Human Rights Tribunal of Ontario to file a complaint, now called an application. If harassing behaviour makes you feel like you’re in danger or leads to violence, call the police.

For more information

The Ontario Human Rights Commission’s Policy on Discrimination and Harassment because of Sexual Orientation and other publications are available at www.ohrc.on.ca.
To make a human rights complaint – called an application – contact the Human Rights Tribunal of Ontario at
Toll Free: 1-866-598-0322
TTY Toll Free: 1-866-607-1240
Website: www.hrto.ca

If you need legal help, contact the Human Rights Legal Support Centre at:
Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca