By David Westcott *
It should come as no surprise that workplace sexual harassment is a prominent barrier to career success and satisfaction—particularly for women and LGBTQ+2S identifying individuals. It may, however, come as a surprise to hear that remote workers are experiencing sexual harassment at rates greater than or equal to those seen among office workers.
Indeed, reports of sexual harassment and violence against remote workers have skyrocketed since March 2020. Whether the switch to remote working during the pandemic caused this increase or not, one thing is certain: sexual harassment knows no boundaries and can happen to any worker, any time.
While sexual harassment and online sexual harassment is clearly illegal across Canada, the legal frameworks that protect workers from online sexual harassment are not perfect. In fact, the legislation fails to address many of the complexities of online sexual harassment. The result is that survivors of technology-based sexual violence are often not fully protected or compensated by the law. This article outlines the state of the law governing online sexual harassment, the gaps the current legislation creates for survivors, and makes recommendations on how these gaps may be filled in the future.
What is online sexual harassment?
Online sexual harassment encompasses a broad range of behaviours, including without limitation, inappropriate text messages, images, threats, appropriation of one’s likeness, and blackmailing. These behaviours, on their own or in combination with other actions are: (1) unwelcome or unsolicited; (2) sexual in nature; and (3) are undertaken without consent.
The Supreme Court of Canada defines workplace sexual harassment—and by extension, online workplace sexual harassment—as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.” The SCC has called sexual harassment at work “an abuse of both economic and sexual power.”
What is the state of the law?
As a worker, it can be difficult to know which legal framework protects you from sexual harassment. For example, if you work for a telecommunications company, you are federally regulated and therefore covered by the Canadian Human Rights Act (CHRA). However, you are far more likely to be covered by Ontario’s Human Rights Code (OHRC) because most employment is a provincial competence under the Constitution Act, 1867.
Both Canada and Ontario have specific provisions in their respective human rights codes that make sexual harassment illegal. Federally, it is found in section 14(2) of the CHRA. Provincially, it is found in sections 7(2)–(3) of the OHRC. These provisions do not create criminal or quasi-criminal offences, but rather create a civil action or complaint mechanism for survivors. There are no specific laws against online sexual harassment in the workplace in Ontario or Canada—the above laws cover it more generally. The Human Rights Tribunal of Ontario has, however, held that delivering unwelcome messages or other media at work using technology can amount to sexual harassment.
In rare cases, such as repeated unwelcome communications or threatening conduct, sexual harassment can be prosecuted under section 264(2) of the Criminal Code. Notably, the Criminal Code is also silent on online sexual harassment specifically.
Shortcomings of the Canadian and Ontarian laws
Left unchecked, an online workplace provides an excellent environment for online sexual harassment to flourish. Online workplaces provide means for communication, set hours where responses can be expected, and minimal supervision throughout the workday. Yet, the dangers of online sexual harassment alone are sufficient to threaten a person’s dignity, feelings, self-respect, and in extreme cases, life. The workplace only serves to deepen the risk.
The government of Nova Scotia recognized the dangers of online sexual harassment when it passed the Intimate Images and Cyber-Protection Act in 2017 (IICPA). The IICPA creates specific civil actions for survivors of unauthorized intimate image distribution and cyber-bullying. While the IICPA covers intimate image distribution and cyber bullying in general, it can be relied on where an individual has been cyber bullied or harassed at work. Perhaps most notably, the IICPA allows a court to order publication bans, communication bans, and the deletion of intimate images where needed. Under this framework, an individual who is sexually harassed at work via online means has access to a statutory cause of action and specific court orders to address their needs.
The statutory causes of action and specific remedies contained in the IICPA recognize the vulnerability of individuals who have been sexually harassed online. The OHRC and the CHRA, however, contain no such protections. While the OHRC does grant courts and tribunals some discretion under section 46.1(1) to address a complainant’s specific needs, adjudicators often exclusively use damages as a remedy for sexual harassment. Any specific remedies have focused more on preventing future sexual harassment rather than compensating a survivor.
This leaves a gap between the harm endured by a survivor of online workplace harassment and the remedy given by a court or tribunal. It is already difficult for a court or tribunal to undo the harm to an employee’s dignity, feelings, and self-respect with damages. Yet, the OHRC provides no guidance to courts or tribunals regarding specific orders they might make to assist survivors in their recovery. Section 46.1(1)’s general order provision therefore fails to orient the justice system with the specific needs of survivors in ways the IICPA does.
The CHRA faces similar issues. While section 53(2) of the CHRA does contain more specific guidance in terms of what a court or tribunal may order in the fallout of a harassment complaint, section 53(2)(a) remains a general provision that allows an adjudicator to apply their discretion—similar to section 46.1(1) of the OHRC.
Both the CHRA and OHRC, therefore, have significant shortcomings in helping survivors—who are theoretically the people these laws are supposed to protect.
Where do we go from here?
Survivors of online sexual harassment at work still have access to damages before human rights tribunals and courts—in short, there are laws which can be relied on. However, legislators must recognize that in a post-pandemic world, remote working will continue. The threat of online workplace harassment will never go away.
Canadian governments should consider implementing specific legislative provisions designed to address the severity of online sexual harassment. These could include, for example, court orders for offenders to pay for survivor mental or health support, mandatory workplace inspections, and mandatory workplace risk re-assessments. The IICPA, though far from perfect, has equipped the Nova Scotia justice system with the tools it needs to address technology-driven sexual violence. Canadian governments should seriously consider following this lead because, ultimately, an important first step in addressing a wrong is making it abundantly clear that it won’t be tolerated.
Have you been sexually harassed online?
You have legal options. Call the Legal Clinic at 613-264-7153 or 1-888-777-8916 ext 27, email email@example.com or visit our website www.tlcshiwproject.com . We can help you determine your next steps.
*David Westcott is a law student at the University of Ottawa. He volunteers with the Legal Clinic’s Sexual Harassment in the Workplace project, which won him a Chief Justice Richard Wagner Award. He is also the Executive Editor for Volume 53 of the Ottawa Law Review