Does intention matter when it comes to workplace sexual harassment?
The short answer is no.
Sexual harassment is conduct of a sexual nature that is known or ought reasonably to be known to be unwelcome. This means that there is a subjective element and an objective element to the test. The subjective element is: Did the alleged harasser actually know that the conduct was unwelcome? The objective element is: Would a reasonable person in the circumstances know that the conduct was unwelcome?
In determining whether a reasonable person would consider the conduct to be unwelcome, you have to take into account the perspective of the victim of the alleged harassment.
In fact, Arbitrator Pamela Picher, in a 2003 decision concerning sexual harassment by a Canada Post supervisor of a female employee, said that the objective standard ought to be based on the perspective of a “reasonable woman,” because the standard of a “reasonable person” may unintentionally incorporate prejudices that the prohibition against sexual harassment is intended to avoid:
It is well established that the appropriate test for determining whether unwelcome conduct has occurred or whether there exists conduct that might place a sexual condition on employment is not that of a “reasonable person” but rather is that of a “reasonable woman”. It is understood that a “reasonable person” standard may incorporate community prejudices that the prohibition against sexual harassment in the workplace is intended to avoid. It is understood that the “reasonable person” which would include, therefore, the “reasonable man” may not consider certain conduct of a sexual nature to be unwelcome. It is understood that the “reasonable man” might not consider to be offensive and problematic certain perspectives and prejudices that have developed over time and which have become the impetus for the legislative prohibition against sexual harassment.
Many stories in the wake of #metoo have involved female employees being hugged, kissed, groped or propositioned at work-related social events. The men involved may not have intended to demean, belittle or sexually harass the women. But from the perspective of a reasonable woman, was the conduct unwelcome? Does a reasonable woman attending work-related social events expect and in fact welcome hugs, kisses, groping and sexualized comments?
If you are interested in hearing more about sexual harassment law, the reasonable person test, the relevance of power imbalances, and due process in sexual harassment cases, you can listen here to an interview I did with CBC Radio’s Information Morning on February 12, 2018.
For more information on sexual harassment law, contact Gail L. Gatchalian, Q.C.