2.1 Defining sexual harassment
Section 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” Using this definition, more than one event must take place for there to be a violation of the Code. However, depending on the circumstances, one incident could be significant or substantial enough to be sexual harassment.
Example: A tribunal found that an incident where a male employee “flicked the nipple” of a female employee was enough to prove that sexual harassment had taken place.
The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes a subjective and objective test for harassment. The subjective part is the harasser’s own knowledge of how his or her behaviour is being received. The objective component considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received. Determining the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed. In other words, the Human Rights Tribunal of Ontario (the HRTO) can conclude on the basis of the evidence before it that an individual knew, or should have known, that his or her actions were unwelcome.
It should be understood that some types of comments or behaviour are unwelcome based on the response of the person subjected to the behaviour, even when the person does not explicitly object. An example could be a person withdrawing, or walking away in disgust after a co-worker has asked sexual questions.
Human rights case law has interpreted and expanded on the definition in section 10 of the Code. In one of the earliest sexual harassment cases in Canada, a tribunal found that in employment, discriminatory conduct may exist on a continuum from overt sexual behaviour, such as unsolicited and unwanted physical contact and persistent propositions, to more subtle conduct, such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.
In another decision, the Supreme Court of Canada stated:
Sexual harassment may take a variety of forms. Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands. Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one…
Over time, the definition of sexual harassment has continued to evolve to reflect a better understanding of the way sexual power operates in society. For example, it is well-established that harassment and discrimination based on sex may not always be of a sexual nature. Behaviour that is not explicitly sexual may still amount to harassment because of sex. The situation must be viewed in the overall context.
Example: A tribunal found that while the most common understanding of sexual harassment is conduct such as making passes, soliciting sexual favours, sexual touching, etc., the definition of sexual harassment also includes conduct that denigrates a woman’s sexuality or vexatious conduct that is directed at a woman because of her sex.
Human rights law clearly recognizes that sexual harassment is often not about sexual desire or interest at all. In fact, it often involves hostility, rejection, and/or bullying of a sexual nature. For more information, see the section entitled “Gender-based harassment.”
The following list is not exhaustive, but it should help to identify what may be sexual and gender-based harassment:
- demanding hugs
- invading personal space
- unnecessary physical contact, including unwanted touching, etc.
- derogatory language and/or comments toward women (or men, depending on the circumstances), sex-specific derogatory names
- leering or inappropriate staring
- gender-related comment about a person’s physical characteristics or mannerisms
- comments or conduct relating to a person’s perceived non-conformity with a sex-role stereotype
- displaying or circulating pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
- sexual jokes, including circulating written sexual jokes (e.g. by e-mail)
- rough and vulgar humour or language related to gender
- sexual or gender-related comment or conduct used to bully a person
- spreading sexual rumours (including online)
- suggestive or offensive remarks or innuendo about members of a specific gender
- propositions of physical intimacy
- gender-related verbal abuse, threats, or taunting
- bragging about sexual prowess
- demanding dates or sexual favours
- questions or discussions about sexual activities
- requiring an employee to dress in a sexualized or gender-specific way
- paternalistic behaviour based on gender which a person feels undermines their status or position of responsibility
- threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).
2.2 When Code grounds intersect
A person may be especially vulnerable to sexual harassment when they are identified by more than one Code ground. For example, a young lone mother receiving social assistance who has had trouble finding suitable housing for herself and her child may find it very challenging to move when her landlord continues to proposition her sexually after she has said no. This woman’s sex, age, family status and receipt of social assistance all make her vulnerable to sexual harassment. If she is a racialized person or has a disability, her experience of the harassment may change or be compounded.
Where multiple grounds intersect to produce a unique experience of discrimination or harassment, we must acknowledge this to fully address the impact on the person who experienced it. Where the evidence shows that harassment occurred based on multiple grounds, decision-makers should consider the intersection when thinking about liability and the remedy available to the claimant.
Tribunals and courts have been increasingly using an intersectional approach in the human rights cases they hear. For example, in one case alleging sexual harassment in employment, the tribunal recognized the claimant’s identity as an Aboriginal lone mother as helpful in understanding the choices available to her when she was trying to keep her job and cope with the respondent’s behaviour. The tribunal stated:
[T]he complainant’s gender, her status as a single mother and her aboriginal ancestry combined to render her particularly vulnerable to the conduct of the respondent.
In another case dealing with the sexual harassment of a woman in the workplace, the tribunal stated in its decision:
As for her vulnerability, it was undoubtedly increased by the fact that as a lesbian, she was a member of a marginalized group.
The harassment provisions of the Code (subsections 2(2), 5(2), 7(1) and (2)) specifically prohibit harassment based on sexual orientation.
Example: A woman working at a coffee shop was asked out on a date by her employer on her second day at work. She declined the invitation. When her employer learned that she was a lesbian, his interest in her intensified and he tried to persuade her to have a heterosexual relationship with him. A human rights tribunal found that the employer’s conduct amounted to harassment because of sexual orientation as well as sexual harassment.
Research has shown that unmarried women may be more vulnerable to sexual harassment in the labour market than married women, due to a perception that they
are less powerful. Young women, as well as women with disabilities, may be similarly singled out as targets for sexual harassment due to a perception that they are more vulnerable and unable to protect themselves.
Racial stereotypes about the sexuality of women have played a part in a number of sexual harassment claims. Women may be targeted because of beliefs based on racialized characteristics (for example, they are more sexually available, more likely to be submissive to male authority, more vulnerable, etc.).
Example: A woman of mixed Métis and Black ancestry experienced a serious course of sexual comments by her employer, who repeatedly referred to his preference for Black women and the physical characteristics of Black and African women. She was also subjected to physical touching and pornography. The tribunal found that her employer sexually and racially harassed her because she is a young Black woman that he, as her employer, could assert economic power and control over. He repeatedly diminished her because of his racist assumptions about the sexuality of Black women. The tribunal awarded separate monetary damages for the racial and sexual harassment. The tribunal also found that the intersectionality of the harassment and discrimination made her mental anguish worse.
In a similar case, an employer’s sexual harassment of a female employee included derogatory references to her race and comments about what he believed to be the sexual habits and preferences of Black women. Sexuality is sometimes intertwined with racism. People may hold stereotypical and racist views about someone’s sexuality based on their ethno-racial identity, and these views may be behind some forms of sexual harassment.
A person may also experience sexual harassment or a poisoned environment because they have a relationship with a racialized person. For example, a woman may be subjected to inappropriate sexual comments because she is dating a racialized man.
Women who come to Canada from other countries to work as domestic caregivers (or “live-in caregivers”) may be especially vulnerable to sexual harassment. They are typically required to live in the homes of their employers, they are isolated, and they need their employer’s cooperation to get citizenship status. For more detailed information, see the section entitled “Sexual harassment in employment.”
2.3 Forms of sexual harassment
Sexual harassment may take various forms, and can be said to exist on a range from seemingly mild transgressions to severe behaviour. In its more subtle forms, sexual harassment may include sexual jokes and innuendo, or unwanted and repetitive gestures of affection. In its more extreme forms, sexual harassment can invade a person’s life and escalate to stalking, physical assault, including attempted and actual rape, and murder.
While many forms of sexual harassment take place through person-to-person contact, sexual harassment is also happening at alarming rates through online technology. Email, blogs, social networking sites, chat rooms, dating websites, cell phone text messaging, etc. are all possible domains for sexual harassment. “Cyber-harassment,” as it is also known, can be carried out by anyone, including a co-worker, a manager, a housing provider, a fellow tenant, a fellow student, a teacher, school staff or a stranger. The growth of technology has created an unprecedented potential for the viral spread of online comment, photographs, video images, etc. The anonymity afforded by many forms of online communication may make it a vehicle of choice for harassers. However, organizations covered by the Code have a responsibility to maintain poison-free environments. To this end, they must be aware of the potential discriminatory effects when online technology is used on their premises for improper purposes.
2.3.1 Sexual solicitation and advances
Section 7(3)(a) of the Code sets out a person's right to be free from unwelcome sexual advances or solicitation from a person who is in a position to grant or deny a benefit. This provision of the Code is violated when the person making the solicitation or advance knows, or should reasonably know, that such behaviour is unwelcome.
People who are in a position to confer, grant or deny a benefit or advancement would include an employer, supervisor, manager, job interviewer, housing provider, professor, resident don, teaching assistant, teacher, etc. Possible benefits might include employment opportunities, job-related benefits such as a promotion or bonus or favourable working conditions, housing benefits, a good mark in a course or a positive reference, and other favours.
Example: A professor or teacher makes an unwelcome sexual advance to a student and implies or explicitly makes it known that if she or he does not accept, she or he will likely not pass the course.
Example: In a rental housing situation, a building superintendent asks for sexual favours in return for granting a tenant’s request to transfer to a larger unit.
Sexual solicitation or advances can also occur between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.
Example: One worker demands sexual favours before sharing important job-related information with a colleague.
Human rights law recognizes that an unequal power dynamic may make it impossible for a person to give real consent. Where a person depends on another for a job, a place to live, a benefit, etc., she or he may feel unable to protest against unwanted sexual activity from the person in a position of power, particularly if she or he is afraid of losing the benefit in question. For more information, see the section entitled “Burden of proof: evidentiary issues.”
Section 8 of the Code prohibits reprisals in general. Sub-section 7(3)(b) specifically prohibits any form of reprisal or threat of reprisal made in the context of a sexual solicitation or advance.
Example: A tribunal found that a male employer had violated section 7(3)(b) when he threatened to dismiss a female employee if she did not accept his dinner and club invitations and then dismissed her after she refused his third request.
2.3.2 Poisoned environment
The Supreme Court of Canada has defined sexual harassment to include conduct that creates a hostile or “poisoned” environment. Creating or allowing a poisoned environment means that certain people face terms and conditions of employment, tenancy, education, etc. that are quite different from those experienced by people who are not subjected to the comments or conduct. This leads to a denial of equality under the Code.
Example: A tribunal found an employer’s repetitive use of terms of endearment such as “sweetheart,” “little lady,” “hun,” “sweetie” and “dear” to be “terms of diminishment,” and that, within the broader context of his other sexualized overtures, the use of these terms created a poisoned work environment and violated a woman’s right to be free from discrimination in employment.
In employment, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace. Managers who know or should know a poisoned atmosphere exists but permit it to continue discriminate against affected employees even if they themselves are not directly involved in creating that atmosphere.
Example: When a co-worker ended a romantic relationship with him, a man showed intimate cell-phone photographs of her to several people in their workplace. His supervisor heard that other people had seen the pictures, but he did not see them himself, and chose not to intervene in what he saw as a personal matter – even though he had a legal duty to do so under the Code.
While the idea of a poisoned environment has arisen mainly in employment, it can also happen in housing, education and other social areas covered by the Code.
Example: A professor held academic meetings with a potential graduate student. These meetings included “seductive music, low lighting, candles, a burning fireplace, dinner, wine, rides home and personal and intimate conversation.” The tribunal found this was sexual harassment, because a vulnerable student who wished to discuss her academic future with someone in a position of authority was subjected to this type of sexually charged environment, where that conduct was objectively known to be unwelcome.
Educators, employers, housing providers and other responsible parties have a duty to keep a positive non-discriminatory environment that is free from sexual harassment. Not addressing a sexualized atmosphere may open the door for more egregious sexual behaviour. In one case, a tribunal commented:
[T]he creation of a poisoned or sexualized work atmosphere had the effect of increasing the vulnerability of [the claimant] to more direct sexual advances by blurring the lines of appropriate conduct…
Further, not addressing sexual harassment may in itself cause a poisoned environment.
A poisoned environment may be based on the nature of the comments or conduct and the impact of these on an individual rather than on the number of times the behaviour occurs. In some cases, a single statement, if bad enough, can have an impact on a person by creating a poisoned environment.
Example: A poisoned environment can result from a single action such as a statement by a union representative that women in general, or women of a certain race or ethnic background, are not suitable as union representatives. Similarly, a poisoned environment may be created by male students distributing or publishing written materials on a college campus that include threatening or intimidating content towards women.
A poisoned environment can be created by the comments or actions of any person, regardless of his or her position of authority or status. Therefore, a co-worker, supervisor, co-tenant, housing provider, member of the Board of Directors, fellow student, teacher, contractor, client, etc. might all do something that creates a poisoned environment. Whoever is involved, the person in charge has a duty to deal with it.
Other examples of situations that could be seen as a violation of the Code by creating a poisoned environment include:
- a supervisor, teacher or housing provider telling an employee, student or tenant: “women should be barefoot and pregnant in the kitchen, not in the boardroom/classroom/living alone,” etc.
- comments, signs, caricatures or cartoons displayed in a workplace, common living area, educational facility, service environment (such as a store or restaurant), etc. that show women in a demeaning way
- sexualized or gender-related graffiti or images that are tolerated and not promptly removed by an employer, housing provider, educator or other responsible party
- sexual or gender-related remarks, jokes or innuendo about an employee, client, student, customer, tenant, etc. In addition, sexual or gender-related remarks, jokes or innuendo made about other people or groups may create worry for bystanders that similar views are held about them.
When a person’s employment is terminated within a poisoned work environment, the environment must be considered when deciding whether the termination was discriminatory.
Behaviour does not have to be directed at any one person to create a poisoned environment. As well, a person can experience a poisoned environment even if he or she is not a member of the Code-protected group that is the target. In one study, researchers adopted the term “ambient harassment” to describe the spill-over effects that the harassment of one person may have on other people in the environment. The researchers reported that in the workplace, “ambient sexual harassment had detrimental influences on both job satisfaction and psychological well-being.”
Example: A hiring team at a law firm was conducting interviews for articling student positions. A senior partner walking by the room where candidates were waiting to be interviewed, pointed at a young female candidate and said to a female member of the hiring team “hire her, she’s easy on the eyes.” This comment created a poisoned environment for both the potential candidate and the woman on the hiring team.
Inappropriate comment or conduct does not just poison the environment for the people targeted – it is offensive to everyone.
Example: In a male-dominated work environment, a tribunal held that a “locker room” mentality is not an excuse for sexually vexatious behaviour, even if some of the participants accept or even seem to enjoy it. The tribunal rejected the employer’s argument that “men in male-dominated workplaces are expected to tolerate crude and lewd environments [and stated]… that it is contrary to the purpose of the Code, which seeks to promote and protect the mutual respect, inherent dignity and worth of every person.”
Every employer, housing provider, education provider or other responsible party must make sure that their environments are free from this sort of behaviour, even if no one objects, and even if there is widespread participation in the behaviour. Under human rights law, it is not a defence to say that other employees were treated in the same negative way as the complainant.
2.3.3 Gender-based harassment
Gender-based harassment may be defined as “any behaviour that polices and reinforces traditional heterosexual gender norms.” It includes harassment for gender non-conformity, and often will look the same as harassment based on a person’s sexual orientation or perceived sexual orientation. As mentioned earlier, the OHRC sees gender-based harassment as a form, or sub-set, of sexual harassment.
In 2012, the Code was amended to include “gender expression” as a new ground (the new ground of “gender identity” was also added at the same time). While the Code does not define “gender expression” (or “gender identity,” for that matter), gender expression can be interpreted to include the external attributes, behaviour, appearance, dress, etc., by which a person expresses themselves and through which others perceive that person’s gender. Therefore, many, if not most, forms of gender-based harassment would now be prohibited under the ground of gender expression as well. A person experiencing gender-based harassment may file a sexual harassment claim with the HRTO. Depending on the circumstances, their claim may also allege a violation of their right to be free from discrimination and/or harassment based on gender expression, and, in some cases, sexual orientation, and/or gender identity as well.Gender-based harassment can be carried out by men or women, and its target may be male or female. It can happen in any of the social areas covered by the Code.
It is well-established that sexual harassment may include behaviour that is not overtly sexual in nature. It may include comment and conduct that relates to a person’s gender, and is meant to demean or cause personal humiliation and/or embarrassment. Human rights case law continues to evolve to recognize a more nuanced understanding of the ways that sexual harassment may involve gender-based negative treatment. For example, in a recent case, a tribunal stated:
The Code provides that all persons have a right to be free of discrimination… and harassment in the workplace… "because of sex." There can be no doubt that the reference to "because of sex" captures the concepts of gender, sexuality and sexual categories, as well as sexual characteristics and, therefore, includes sexually-related discrimination and harassment. The focus of a sexual harassment inquiry is not strictly on the gender or sexual orientation of the parties. It is a multi-faceted assessment that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct. The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim.
Gender-based harassment is not generally motivated by sexual interest (note, however, that motive is irrelevant in a discrimination analysis: see the section entitled “Burden of proof” for more information). In fact, it is more often based on gender-based hostility and is often an attempt to make the target feel unwelcome in their environment. In many cases, gender-based harassment “undermines, humiliates, or rejects a target on the basis of sex with sexual and sexist remarks, jokes, materials or pranks.”
Gender-based harassment is often used to reinforce traditional sex-role stereotypes, (masculine dominance and female subservience). One author notes:
Gender ideals involve both physical and personality characteristics. Personality characteristics desired in men include assertiveness, independence, and dominance; those desired in women include modesty, deference, and warmth.
People who do not conform to traditional understandings of “appropriate” sex-role behaviour may be singled out for harassment as “gender-role deviants.” Another author notes:
Sexual harassment is a tool to maintain a masculine hierarchy that rewards men who possess the requisite masculine traits. Women are in a double bind in situations controlled by men with a propensity to harass. If they attempt to break traditional female gender roles, such as entering traditionally male occupations, they may be targeted for harassment as a means of dissuasion. If they conform to traditional feminine gender roles, such as dressing in feminine ways or occupying traditionally female jobs, they may evoke sexual attention, which shifts attention from their worker status to a sexual playmate status. Both forms of harassment against women serve to maintain the status quo of male dominance.
Subjecting a woman to negative treatment because of a perception that she is not physically attractive and does not measure up to a stereotypical ideal of feminine beauty has been found to constitute sexual harassment.
Example: A tribunal found that an employee’s repeated and negative comments to a co-worker about her physical appearance and the fact that he thought she was overweight amounted to sexual harassment. The tribunal held that the co-worker’s comments had no other purpose but to show that the woman was physically unattractive and sexually undesirable. The Board referred to this behaviour as “sexual harassment in the form of an inappropriate comment of a sexual nature.”
Example: In a similar case, where a co-worker told the claimant to “get off your fat ass, you bitch,” a tribunal stated that “the term ‘fat ass’ is an insult generally levelled against a woman who does not conform to the stereotype of the physical size that an attractive woman should be.” The tribunal went on to state that “in the context of the respondent’s workplace, the term took on a gender-specific character and was applied exclusively as [a] sexist insult to [the claimant] because she is a woman…The term ‘bitch’ is used exclusively in reference to women.”
Assertive, independent women who defy gender norms may be especially vulnerable to harassment. One study on gender-based harassment showed that “the more a woman deviated from traditional gender roles – by occupying a ‘man’s’ job or having a masculine personality – the more [she was] targeted for sexual harassment.”
Example: A successful female real estate agent was criticized for being "aggressive," "a woman in a man's environment" and "much like a man." She was called bossy and condescending, often because of behaviour that was no different from the behaviour of the male real estate agents in the same office. Agents at the company referred to her in language that disparaged her based on her sex, and there was a false sexual rumour spread among her colleagues that she was having a relationship with one of the managers.
Example: A female police officer, who was also a bodybuilder, found vibrators, a urinal device and a soiled condom and sanitary napkin in her mailbox at work. She was also subjected to sexually explicit noises and materials.
Example: An outspoken, high-performing woman in a male-dominated professional accounting office was denied partnership and told to learn how to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewellery.”
Women may be subjected to unsolicited advice based on gender-based ideas about how women should look, dress or behave.
Example: A teacher repeatedly makes comments to a female student about her choices of clothing. He tells her that she should wear skirts more often because they make her look “feminine” and that she looks “prettier” when she wears her hair down.
Men may also be subjected to gender-based harassment, often by other men, for not conforming to stereotypical notions of masculinity. One author writes:
[S]exual hierarchies among men are rigidly enforced according to norms of masculinity. Men are singled out for sexual violence and harassment based on their failure to conform to this norm, disproportionately so if they are also physically or mentally disabled or a member of an otherwise marginalized community.
Male-to-male gender-based harassment is often aimed at men who appear to be effeminate, gay, young, inexperienced, or otherwise “insufficiently” masculine. The harassment will often involve homophobic slurs and taunting, no matter what the victim’s sexual orientation.
Example: Male co-workers mocked a man due to infertility issues he and his wife were having. His masculinity was ridiculed and he was repeatedly called “bati boy,” a pejorative slur used to describe gay, bisexual or effeminate men.
Men may experience gender-based harassment for not taking part in sexualized behaviour, or for not taking an adequate interest in sexually explicit humour or material.
Example: A tribunal found that a man was singled out, subjected to “sexual harassment fused with workplace bullying,” and ultimately fired due, in part, to his refusal to view pornography during work hours with his supervisor and co-workers.
Example: A man was sexually harassed by his co-workers when he would not engage in sexual conversations with them and because he disapproved of their use of foul language.
In these ways, men may perpetrate gender-based harassment not only to harm their targets, but also to reinforce masculine dominance and to “prove” their own masculinity to other male onlookers.
People who identify as transgender may be especially vulnerable to gender-based harassment. By not conforming to traditional sex-role stereotypes, transgender people may be subjected to gender-policing and other forms of sexually harassing behaviour.
Example: In a warehouse, a transgender female employee is repeatedly made the brunt of practical jokes and called a “freak” by her co-workers.
The Code’s prohibition against sexual harassment includes all forms of gender-based harassment.
2.3.4 Sexual harassment and violence
Inappropriate sexual behaviour often develops over time, and if left unchallenged may progress to more serious forms. Violence is often the culmination of ongoing acts
of harassment. This connection is quite clear in the case of sexual harassment and violence. In many ways, sexual harassment and sexual violence exist on the same continuum of negative attitudes toward girls and women.
Example: An employer’s repeated sexual touching of and commentary toward a female employee over a three- to four-month period in the workplace culminated in his gaining entry into her home one morning and threatening to rape her.
The United Nations’ Declaration on the Elimination of Violence Against Women, which complements and strengthens the Convention on the Elimination of All Forms
of Discrimination Against Women specifically recognizes “sexual harassment and intimidation [of women] at work, in educational institutions and elsewhere” as a form
of violence against women.
In three notable cases, acts of workplace sexual harassment escalated to violence and ultimately resulted in murder. The 1997 Theresa Vince Inquest, the 2002 Gillian Hadley Inquest and the 2007 Lori Dupont Inquest looked at the tragic murders of these women – Vince and Dupont at the hands of their colleagues, and Hadley who faced workplace harassment from her in-laws and was eventually murdered by her ex-husband. Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, was enacted at least in part as a result of organized efforts to build awareness after these tragic events.
Like other forms of sexual harassment, gender-based harassment may also escalate to violent behaviour. The targets of this violence may be male or female.
Example: In the first same-sex sexual harassment case heard in the United States, an offshore oil-rig worker was subjected to constant ridicule and derision by his co-workers. This behaviour culminated in him being sexually assaulted in a locker room.
The Occupational Health and Safety Act requires employers in workplaces with five or more employees to prepare written policies on workplace violence and workplace harassment. The policies must be reviewed at least annually. Employers must also develop a program to implement the workplace violence policy. The OHSA also contains provisions that require employers to do risk assessments to prevent workplace violence.
Along with the requirements of the OHSA, employers will need to take steps to account for the interrelated dimensions of sexual harassment and violence through efforts to assess risk and protect workers. Under the Code, employers must ensure their environments are free from harassment. One way to do this is by monitoring the environment on an ongoing basis. Any prevalence of harassment found becomes a risk factor that employers need to consider in their duty to assess and address the risk of workplace violence under the OHSA.
High rates of sexual harassment and sexual violence in Toronto’s schools have been well-documented by The Road to Health: A Final Report on School Safety (the Falconer Report) released in 2008. After the Falconer Report, the Minister of Education asked a Safe Schools Action Team to review incidents of student-to-student gender-based violence, homophobia, sexual harassment and inappropriate sexual behaviour, including any barriers to reporting that may exist in Ontario’s publicly funded schools. In its report, the Safe Schools Action Team cited the influence of media, particularly electronic media, in perpetuating negative stereotypes, modeling unhealthy relationships, and
in showing widespread gender-based violence as “highly relevant to issues of sexual harassment.” The Report states, “…some of the most popular video games contain graphic violence in which violence (particularly against women) is normalized.” The Report cites research showing that:
[P]rolonged exposure to such material can encourage imitation, stimulate violent or aggressive behaviour, cause emotional desensitization towards victims, and reduce the inclination to intervene to help victims or seek help on their behalf.
The potential for sexual harassment and violence increases if a person is identified by more than one Code ground. For example, research shows that girls and young women living with disabilities experience violence four times more often than the national average.
Educators, employers, housing providers and other responsible parties should take immediate steps to address inappropriate sexual behaviour that may lead to a poisoned environment and potential violence. Not addressing a sexualized atmosphere may lead to more serious sexual behaviour. Educators, employers, housing providers and other responsible parties need to know the potential links between sexual harassment and violence, and must reflect this knowledge in policies, programs and procedures.
 "Vexatious” conduct or comment refers to actions or words that are annoying, distressing or agitating to the person experiencing them; for example, conduct has been found to be vexatious where the person complaining finds the comments or conduct worrisome, discomfiting and demeaning: see Streeter v. HR Technologies, 2009 HRTO 841 at para. 33.
 See Re Metropolitan Toronto (Municipality) and C.U.P.E., Local 79  O.L.A.A. No. 774, para. 353.
 Murchie v. JB’s Mongolian Grill (No. 2), 2006 HRTO 33 (Ont. Human Rights Trib.). See also, Haykin v. Roth, 2009 HRTO 2017; Wamsley v. Ed Green Blueprinting, 2010 HRTO 1491; Ford v. Nipissing University, 2011 HRTO 204; and Gregory v. Parkbridge Lifestyle Communities Inc. 2011 HRTO 1535.In Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 (C.H.R.T.), the tribunal noted that the more serious the conduct, the less need there is for it to be repeated. Conversely, the tribunal held the less serious the conduct, the greater the need to show its persistence.
 Reed v. Cattolica Investments Ltd. and Salvatore Ragusa,  O.H.R.B.I.D. No. 7 (Ont. Bd. Inq.). See also, Gregory v. Parkbridge Lifestyle Communities Inc., ibid. at para. 87.
 In Harriott v. National Money Mart Co., 2010 HRTO 353 at para. 104, the tribunal found that the respondent’s continued sexualized and inappropriate comments and conduct were unwelcome in the workplace.
 See S.S. v. Taylor, 2012 HRTO 1839 at para. 71.
 Bell v. Ladas (1980), supra, note 1.
 Janzen v. Platy Enterprises Ltd. (1989), supra, note 1 at para. 44447.
 Impact Interiors Inc. v. Ontario (Human Rights Commission) (1988), 35 C.H.R.R. D/477 (Ont. C.A.); Drummond v. Tempo Paint & Varnish Co. (1998), 33 C.H.R.R. D/175 (Ont. Bd. Inq.)
 Shaw v. Levac Supply Ltd. (1990), 14 C.H.R.R. D/36 (Ont. Bd. Inq.)
 Arias v. Desai, 2003 HRTO 1
 Harriott v. National Money Mart Co. (2010), supra, note 12.
 Harriott, ibid. Note that girls and women with disabilities (physical or mental) may be particularly vulnerable to unnecessary and unwanted physical contact, and other forms of sexual harassment.
 Janzen v. Platy Enterprises Ltd., (1989), supra, note 1; Impact Interiors Inc. v. Ontario (Human Rights Commission) (1988), supra, note 16; Olarte v. De Filippis (1983), 4 C.H.R.R. D/1705 (Ont. Bd. Inq.); affirmed (1984), 49 O.R. (2d) 17 (Ont. Div. Ct.)
 Harriott v. National Money Mart Co. (2010), supra, note 12.
 Susan Dimock, “Reasonable Women in the Law,” Critical Review of International Social and Political Philosophy, Vol. 11, No. 2, June 2008, 153 at 160. See also, Fornwald v. Astrographic Industries Ltd. (1996), 27 C.H.R.R. D/317 (B.C.C.H.R.); Farris v. Staubach Ontario Inc., 2011 HRTO 979 at para. 164, reconsideration request denied 2011 HRTO 1778, rev’d in part 2012 ONSC 3876, reconsideration on liability 2012 HRTO 182; Iu v. Markham Marble, 2012 HRTO 65 at para. 26; McIntosh v. Metro Aluminum Products and another, 2011 BCHRT 34 (application for judicial review dismissed, 2012 BCSC 345)
 Harriott v. National Money Mart Co. (2010), supra, note 12. Depending on the circumstances, consideration should be given to whether there are other plausible explanations for “inappropriate” staring. For example, a person with a visual or other disability may not be aware of the fact that they are staring.
 Shaw v. Levac Supply Ltd. (1990), supra, note 17; Fornwald v. Astrographic Industries Ltd.(1996), supra, note 24 at D/322. Farris v. Staubach Ontario Inc., 2011, supra, note 23.
 Farris, ibid.
 Baylis-Flannery v. DeWilde, 2003 HRTO 28; Waroway v. Joan & Brian’s Upholstering & Interior Decorating Ltd. (1992), 16 C.H.R.R. D/311 (Ont. Bd. Inq.); see also Abdolalipour v. Allied Chemical Canada Ltd. (1996),  O.H.R.B.I.D. No. 31 (Ont. Bd. Inq.); deSousa v. Gauthier (2002), 43 C.H.R.R. D/128 (Ont. Bd. Inq.)
 deSousa v. Gauthier (2002), ibid.
 I.A.M., Lodge 171 v. Fleet Industries,  O.L.A.A. No. 791 (Ont. Arb. Bd.)
 deSousa v. Gauthier (2002), supra, note 27.
 A. v. Quality Inn, (1993), 20 C.H.R.R. D/230 (Ont. Bd. Inq.); Farris v. Staubach Ontario Inc., 2011, supra, note 23.
 Mottu v. MacLeod and others, 2004 B.C.H.R.T. 67; Bil v. Northland Properties, 2010 B.C.H.R.T. 234.
 The OHRC has explored this “contextualized” or “intersectional” approach to discrimination analysis at length in its Discussion Paper entitled An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims, available at: www.ohrc.on.ca/en/resources/discussion_consultation/DissIntersectionalityFtnts/view. (Retrieved: April 22nd 2013). The concept of “intersectionality” has been defined as “intersectional oppression [that] arises out of the combination of various oppressions that, together, produce something unique and distinct from any one form of discrimination standing alone…” M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229.
 See, for example, Baylis-Flannery v. Walter DeWilde (2003), supra, note 27; SH v. M […] Painting, 2009 HRTO 595 (CanLII).
 S.H. v. M., ibid. at para. 5. See also Iu v. Markham Marble, supra note 23.
 See Crozier v. Asselstine, (1994), 22 C.H.R.R. D/244 at para. 18 (Ont. Bd. Inq.)
 “Sexual orientation” was added as a ground to these sections as a result of the passage of Bill 33, Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression) in 2012. Before these amendments, however, it was the OHRC’s position that the harassment provisions of the Code should be read to include sexual orientation. This approach was consistent with human rights case law pre-dating the amendments: see Crozier v. Asselstine, (1994), ibid.
 Crozier v. Asselstine, (1994), ibid.
 See, for example, Marla H. Kohlman, “Intersection Theory: A More Elucidating Paradigm of Quantitative Analysis,” Race, Gender & Class, 13:3 4 , 42-53.
 See, for example, Fiona Sampson, “Globalization and the Inequality of Women with Disabilities”, (2003) 2 J. L. & Equality 18; Susan Fineran, “Sexual harassment and students with disabilities,” (2002) Paper presented at the annual meeting of the Society for the Study of Social Problems, Washington D.C.; and Susan Fineran, “Sexual Harassment Between Same-Sex Peers: The Intersection of Mental Health, Homophobia, and Sexual Violence in Schools,” (2002) Social Work, 47. Both papers are discussed in James E. Gruber and Susan Fineran, “The Impact of Bullying and Sexual Harassment on Middle and High School Girls,” Violence Against Women, Volume 13, Number 6, June 2007, 627 at 632.
 Baylis-Flannery v. Walter DeWilde (2003), supra, note 27.
 Cuff v. Gypsy Restaurant (1987), supra, note 5.
 See, for example, Baylis-Flannery v. Walter DeWilde (2003), supra, note 27.
 Section 12 of the Code protects the rights of a person who is associated with a person who is a member of a group identified by the Code.
 Note, however, that a person’s experience of the sexually harassing behaviour must be considered when deciding how serious the comment or conduct was. Sexual harassment that may seem to be on the less serious end of the spectrum may still have a very negative impact on the person being harassed,
and may constitute a violation of the Code.
 See The Road to Health: A Final Report on School Safety, School Community Safety Advisory Panel (The Falconer Report) (January 2008), available at: www.schoolsafetypanel.com/pdf/finalReport_volume4.pdf (Retrieved: April 22nd 2013). See also, McIntosh v. Metro Aluminum Products and another, supra, note 23.
 Russel Zinn, The Law of Human Rights in Canada: Practice and Procedure, Canada Law
Book, at 11-28.
 Pchelkina v. Tomsons, 2007 HRTO 42. See also Morrison v. Motsewetsho, 2003 HRTO 21;Waroway v. Joan & Brian’s Upholstering & Interior Decorating Ltd. (1992), supra, note 27;Robinson v. Company Farm Ltd. (1984), 5 C.H.R.R. D/2243 (Ont. Bd. Inq.); Mitchell v. Traveller Inn (Sudbury) Ltd. (1981), 2 C.H.R.R. D/590 (Ont. Bd. Inq.); Q. v. Wild Log Homes Inc., 2012 BCHRT 135 at para. 155, 158.
 Janzen et al v. Platy Enterprises Ltd. (1989), supra, note 1.
 Colvin v. Gillies 2004 HRTO 3
 Dhillon v. F.W. Woolworth (1982), 3 C.H.R.R. D/743 (Ont. Bd.Inq.); Naraine v. Ford Motor Company , 27 C.H.R.R. D/23014 (Ont. Bd. Inq.); aff'd 34 C.H.R.R. D/405 (Ont. Div. Ct.); rev'd (2001), 209 D.L.R. (4th) 465 (Ont. C.A.); leave to appeal refused  S.C.C.A. No. 69 (QL).
 Ghosh v. Domglas Inc. (No.2) (1992), 17 C.H.R.R. D/216 at para. 76 (Ont. Bd. Inq.).
 Mahmoodi v. Dutton, (1999), 36 C.H.R.R. D/8 (B.C. Hum. Rts. Trib.) at para. 242.
 Curling v. Torimiro  O.H.R.B.I.D. No. 17 at para. 77 (Ont. Bd. Inq.)
 See Moffatt v. Kinark Child and Family Services (1998) 35 C.H.R.R. D/205 (Ont. Bd. Inq.) and
Kharoud v. Valle-Reyes (2000) BCHRT 40.
 As noted earlier, in Dhanjal v. Air Canada, supra, note 10 at para. 209, the tribunal noted that the more serious the conduct, the less need there is for it to be repeated, and the less serious it is, the greater the need to show its persistence.
 Saskatchewan (Human Rights Commission) v. Engineering Society (1989), 10 C.H.R.R. D/5636 (Sask. Bd. Inq.).
 J.D. v. M.G.  O.H.R.B.I.D. No. 9 (Ont. Bd. Inq.).
 Smith v. Mardana Ltd. (2005), CHRR Doc. 05-094 (Ont. Div. Ct.), rev’g in part (2002), 44 C.H.R.R. D/142 (Ont. Bd. Inq.); Naraine v. Ford Motor Company of Canada (1996),
supra, note 51 at paras. 98 and 99.
 Lee v. T.J. Applebee’s Food Conglomeration (1987), 9 C.H.R.R. D/4781 (Ont. Bd. Inq.)
 As discussed in Margaret S. Stockdale, “The Sexual Harassment of Men: Articulating the Approach-Rejection Theory of Sexual Harassment,” in In the Company of Men: Male Dominance and Sexual Harassment, supra, note 6, at 135.
 Smith v. Menzies Chrysler Inc. 2009 HRTO 1936; (reconsideration request denied in 2009 HRTO 2270).
 Ibid., at para. 156.
 See Smith v. Ontario (Human Rights Commission), (2005), 52 C.H.R.R. D/89 (Ont. Div.Ct.) and Naraine v. Ford Motor Company (1996), supra, note 51.
 See Hughes v. Dollar Snack Bar (1981), 3 C.H.R.R. D/1014 (Ont. Bd. Inq.).
 Elizabeth J. Meyer, “Gendered Harassment in Secondary Schools: Understanding Teachers’ (Non) Interventions,” Gender and Education, Vol. 20, No. 6, November 2008, 555 at 555.
 In Wagner v. Bishop, 2010 HRTO 2546 at para. 25, the tribunal stated that “it is not necessary to show sexual attraction in order to establish ‘harassment because of sex.’” See also Shaw v. Levac Supply Ltd. (1990), supra, note 17, in which the tribunal ruled that not all harassment because of sex necessarily involved pressure to engage in sexual activity.
 See Bell v. Ladas, (1980) supra, note 1; Demars v. Brampton Youth Hockey Association, 2011 HRTO 2032.
 Smith v. Menzies Chrysler Inc. (2009), supra, note 62 at para. 150.
 Jennifer L. Berdahl, “The Sexual Harassment of Uppity Women,” Journal of Applied Psychology, 2007, Vol. 92, No. 2, 425-437 at 426. See also, Demars v. Brampton Youth Hockey Association, supra, note 68.
 Berdahl, ibid. at 425. See also, Demars v. Brampton Youth Hockey Association, ibid.
 Berdahl, ibid.
 Margaret S. Stockdale, “The Sexual Harassment of Men: Articulating the Approach-Rejection Theory of Sexual Harassment,” supra, note 61, at 117.
 Shaw v. Levac Supply Ltd. (1990), supra, note 17, at para. 139.
 Fornwald v. Astrographic Industries Ltd. (1996), supra, note 23 at D/322. See footnote 23 for additional recent cases where sexually demeaning, gendered language was used in the course of sexual harassment.
 Jennifer L. Berdahl, “The Sexual Harassment of Uppity Women,” supra, note 70 at 434.
 Farris v. Staubach Ontario Inc., 2011, supra, note 23 at paras. 56-58.
 Sanchez v. City of Miami Beach, 720 F. Supp. 974 (S.D. Fla. 1989).
 Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), as discussed in Jennifer L. Berdahl, “The Sexual Harassment of Uppity Women,” supra, note 70 at 426. See also Farris v. Staubach Ontario Inc., 2011, supra note 23.
 Janine Benedet, “Same-Sex Sexual Harassment in Employment”, (2000), 26 Queen’s L. J. 101at para. 83.
 Margaret S. Stockdale, “The Sexual Harassment of Men: Articulating the Approach-Rejection Theory of Sexual Harassment,” (2005), supra, note 61.
 Shroff v. Tipco 2009 HRTO 1405, (reconsideration request denied in 2009 HRTO 1660).
 Michael S. Kimmel and Tyson Smith, “The ‘Reasonable Woman’ and the Unreasonable Man,” Gendered Discourses in Sexual Harassment Litigation,” in In the Company of Men: Male Dominance and Sexual Harassment,” supra, note 6 at 144.
 Smith v. Menzies Chrysler Inc. (2009), supra, note 62 at para. 150.
 Polly v. Houston Lighting & Power Co. 825 F. Supp. 135 (S. D. Tex. 1993). See also the U.S. landmark same-sex sexual harassment case: Oncale v. Sundowner Offshore Services, 118 S. Ct. 998 (1998).
 See Wagner v. Bishop, 2010 HRTO 2546, supra note 67 at para. 26.
 Margaret S. Stockdale, “The Sexual Harassment of Men: Articulating the Approach-Rejection Theory of Sexual Harassment,” supra, note 61 at 125.
 See Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (reconsideration request denied in 2012 HRTO 2165). For more information, see the OHRC’s Policy on Discrimination and Harassment Because of Gender Identity, available at: www.ohrc.on.ca/en/policy-discrimination-and-harassment-because-gender-id... (Retrieved: April 22, 2013).
 In Cugliari v. Clubine, 2006 HRTO 7, at para. 23, Dr. Sandy Welsh, an associate professor in the Department of Sociology at the University of Toronto, testified that “there is often an escalation in behaviour from initially grey behaviour into more directed comments and physical or sexual touching.”
 Quebec (Commission des droits de la personne) v. Larouche (1993), 20 C.H.R.R. D/1 (Que. Trib.) For Ontario cases, see Hughes v. 1308581 Ontario, 2009 HRTO 341(Ont. Human Rights Trib.) in which the respondent also pled guilty to a charge of criminal harassment; Baylis-Flannery v. DeWilde, (2003), supra, note 27; Domingues v. Fortino, 2007 HRTO 19; Arias v. Desai, (2003), supra, note 18.
 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31 (entered into force 03 September 1981, accession by Canada 09 January 1982).
 Declaration on the Elimination of Violence Against Women, Resolution A/RES/48/104 adopted 20 December 1993, Article 2(b).
 Development and passage of the Bill was influenced by the efforts of Barbara Dupont (the mother of Lori Dupont) and others who lobbied members of provincial parliament, got thousands of signatures on petitions, and along with the family members of Theresa Vince and Lori Dupont, testified at Queen’s Park to gain public support for legislative change.
 Oncale v. Sundowner Offshore Services, (1998), supra, note 85.
 “The Falconer Report,” supra, note 46, as referenced by the Ontario Women’s Justice Network at: www.owjn.org/owjn_2009/index.php?option=com_content&view=article&id=54&Itemid=67 (Retrieved: April 22, 2013 ).
 Safe Schools Action Team, Shaping a Culture of Respect in Our Schools: Promoting Safe and Healthy Relationships, (December 2008), available at: www.edu.gov.on.ca/eng/teachers/RespectCulture.pdf . (Retrieved: April 22, 2013).
 Ibid at 12.
 Ibid at 7.
 S. Razack, “From Consent to Responsibility, From Pity to Respect: Subtexts in Cases of Sexual Violence Involving Girls and Women with Developmental Disabilities,” Law and Social Inquiry, 19 (4) (Fall 1994): 891-922, p. 900.