Education, in its broadest sense, is a “service” under the Code. Section 1 of the Code guarantees the right to equal treatment in services, without discrimination on the basis of sex. Sexual harassment, as a form of sex discrimination, is therefore prohibited in education settings.
Sexual harassment may be carried out by administrators, trustees, educators, school staff, students, third-party service providers, visitors and others. Sexual harassment will further contravene the Code where it results in a poisoned environment for students or school staff. The scope of “educational services” includes primary, secondary and post-secondary education, as well as co-instructional activities such as school-related sports, arts and cultural activities, school functions and field trips, and tutoring.
Education is vitally important in a young person’s life. It provides opportunities for personal, social and academic development and is important for future employment and integration in society. The school setting is one of the first places that children learn to relate to and interact with one another. It is often in relation to their peers that children begin to perceive themselves and the world around them. A student’s experience in school can have a major effect on his or her self-image and self-esteem, and on his or her development later in life.
It is, therefore, of great concern that sexual harassment appears to be widespread in Ontario’s schools. Evidence from several sources shows that sexual harassment, including gender-based harassment, happens often. For example, a province-wide survey by the Ontario Secondary School Teacher Federation in 1995 showed that over 80% of female students reported that they had been sexually harassed in a school setting. In the Falconer Report, an advisory committee looking at schools in the Toronto District School Board cited a study of 4,200 girls between the ages of 9 and 19 that showed that 80% had experienced sexual harassment, many on a daily basis. These findings are consistent with similar studies conducted in the United States. It is of equal concern that according to the Falconer Report, most incidents of sexual harassment in schools, and even instances of sexual assault, go unreported.
There have been many reports of sexual harassment in post-secondary schools. Women may experience sexual solicitation and advances from male professors, teaching assistants, university staff, students, etc. Sexual harassment, and harassment because of sexual orientation, can also occur as part of school rituals, such as initiation of new students, new players in team sports, or new members of sororities or fraternities, when students have to take part in sexually explicit rites as part of hazing activities. Other forms of violence against women, including date rape and other types of sexual assault, continue to be issues of concern on university and college campuses across the country.
The culture of an educational setting will usually mirror the values and attitudes of the broader society it exists in. Young people who are regularly exposed to sexualized, often degrading images of girls and women, and to rigid sex-role stereotyping, may not recognize sexual harassment when they see it, and may participate in it without realizing the implications. However, Canadian law has long established that intent or motive to discriminate is not needed for a finding that discrimination took place. It is enough that the conduct has a discriminatory effect.
As mentioned earlier, the Safe Schools Action Team set up in the wake of the findings of the Falconer Report expressed particular concerns about the influence of media, particularly electronic media, and the way that it perpetuates negative sex-role stereotypes, models unhealthy relationships, and showcases widespread gender-based violence. These influences filter into Ontario’s schools.
One source listed the following unwanted and unwelcome behaviours from other students or adult school personnel as examples of sexual harassment specific to education:
[S]exual comments, jokes, gestures, rumours, or looks; showing of sexual pictures, photographs, or illustrations; written sexual messages, notes or graffiti on bathroom walls or in locker rooms; being called gay or lesbian in a malicious manner; being spied on while dressing or showering at school; being “flashed” or “mooned”; being touched, grabbed, or pinched in a sexual way; having clothing pulled off or down in a sexual way; being intentionally brushed up against by someone in a sexual way; being blocked or cornered in a sexual way; and being forced to kiss someone or experience some other unwelcome sexual behaviour other than kissing. Sexual harassment may also include “spiking” or pulling down someone’s pants; “snuggies,” [or “wedgies”] where underwear is pulled up at the waist so it goes between the buttocks; and/or being listed in “slam books” that identify students’ names and have derogatory sexual comments written about them that are circulated by other students.
There are many possible effects of sexual harassment on students. A student experiencing sexual harassment may disengage from the curriculum and all school-related activities. They may skip or drop classes, or they may drop out of school entirely. Psychological effects may include anxiety, depression, disrupted sleep, loss of appetite, inability to concentrate, lowered self-esteem, loss of interest in regular activities, social isolation, and feelings of sadness, fear and/or shame. Some students may abuse drugs and/or alcohol to cope. In extreme cases, students may think about or even attempt suicide.
A student’s vulnerability to sexual harassment may be heightened if they identify by other Code grounds, such as race, sexual orientation, disability, etc. Similarly, a person’s experience of sexual harassment may be made worse if the harassment intersects with discrimination and/or harassment based on other Code grounds.
As in employment and housing, sexual harassment in a school setting may be used to enforce conformity with sex-role stereotypes. Gender-based harassment can be particularly damaging to adolescent students who are struggling with their identities, and trying to come to terms with their sexuality, peer pressure, and a desire to fit in. Students who are perceived as not conforming to stereotypical gender norms may be particularly vulnerable to gender-based harassment.
Gender-based harassment in schools is often used as a form of bullying. This seems to happen regularly in primary, middle and high school. Students may use sexual information to gain control and power over another person.
Example: In an attempt to ostracize a perceived rival, a girl starts a rumour that another girl is sexually promiscuous and performs sex acts on boys behind the school.
Similarly, sexist and homophobic name-calling, jokes and conduct may be used as part of a broader strategy to bully and shun a person. In some cases, gender-based harassment may look the same as harassment based on sexual orientation, or homophobic bullying.
What is homophobic bullying?
Homophobic bullying is any hostile or offensive action relating to one’s sexual orientation. These actions might be:
- verbal, physical or emotional harassment (social exclusion)
- insulting or degrading comments
- name calling, gestures, taunts, insults or “jokes”
- offensive graffiti
- humiliating, excluding, tormenting, ridiculing or threatening
- refusing to work or co-operate with others because of their sexual orientation or identity.
Homophobic bullying is often present in an environment that fails to challenge and respond to homophobia.
Information adapted from Stance Against Homophobic Bullying (2007) available at: www.stance.org.uk/page114.asp (Retrieved: April 22, 2013 ).
Example: A grade 9 male student who has many female friends and is more interested in the arts than athletics is repeatedly called “fag,” “homo,” “queer,” etc. by a group of boys in the school.
Anti-gay slurs are used as put-downs in many educational settings, regardless of the target’s sexual orientation. Anti-gay epithets and homophobic comment and conduct are prohibited by the Code’s protection against discrimination because of sexual orientation, no matter what the target’s sexual orientation is, or is perceived to be. Also, depending on the circumstances, such behaviour may also be seen as a form of sexual harassment (gender-based harassment) for the purposes of filing a human rights claim under the Code.
The impact of discrimination and harassment on lesbian, gay, bisexual and transgender youth
- 30% of suicides are LGBT
- 43% of trans-identified people attempt suicide
- 26% of LGBT youth are told to leave home
- LGBT youth are more likely to become homeless.
Information taken from PFLAG Canada’s website: www.pflagcanada.ca/en/index-e.asp (Retrieved: April 22, 2013).
Bullying in public schools has received much attention in recent years in the media and in education policy. However, while sexual harassment may be used as a bullying tactic, it is important that sexual harassment not be overshadowed by broader understandings of bullying or anti-bullying strategies. When sexual harassment is fused with bullying, the emphasis tends to be on a person’s sexuality, their sexual characteristics, their sexual reputation, and/or on gender and sexual stereotypes. This focus makes it different from other types of bullying, and unique strategies must be used to address it. The Falconer Report cites research that suggests that
[A]nti-bullying programs have little effect in preventing violence against girls. The programs tend to be gender-neutral and treat youth as a uniform group… Successful outcomes in this area involve developing effective initiatives, including gender-based peer education programs, that examine the roots of violence against girls, healthy relationships, and equality among marginalized groups, as well as the creation of ‘safe space’ programs that use peer facilitators to lead open discussion among girls and other vulnerable groups.
Online technology, such as e-mail, blogs, social networking sites, chat rooms, dating websites, cell phone text messaging, etc., provides new frontiers for the sexual harassment of youth.
Example: The Ontario College of Teachers revoked a 29-year-old teacher’s license because he sexually harassed a female student through e-mail. The teacher used a false name and sent messages to the student that included information about what she had been wearing that day, what route she took to school, and overt sexual propositioning.
Many young people are avid users of online technology, often without adult supervision or monitoring, so they may be particularly prone to being targets of online sexual harassment, and to doing it themselves. Social networking sites, for example, provide a possible forum for public humiliation and may be used for any number of sexually harassing behaviours, including posting sexual pictures and videos, personal messages of a sexual nature, and spreading sexual rumours and gossip.
While there are sometimes complex jurisdictional issues around the legal regulation of cyber-harassment, educators may be liable for a poisoned environment caused when online communications containing comment or conduct that would amount to sexual harassment are accessed through school technology, or by private electronic devices used on school premises. School Codes of Conduct often state that disciplinary action may be taken to address student behaviour that takes place outside of the school’s premises, but has an impact on school climate. See the section entitled “Preventing and responding to sexual harassment” for the responsibilities of education providers in this regard.
 Peel Board of Education v. Ontario (Human Rights Commission) (1990), 12 C.H.R.R. D/91 (Ont. S.C.)
 Janzen v. Platy Enterprises Ltd., (1989) supra, note 1.
 As referenced by David A. Wolfe, “Sexual Harassment and Related Behaviours Among Youth from Grade 9 to Grade 11,” (2008), Centre for Addiction and Mental Health, available online at: www.researchgate.net/publication/228586234_Sexual_Harassment_and_Related_Behaviours_Reported_Among_Youth_from_Grade_9_to_Grade_11 (Retrieved: April 22, 2013).
 “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).
 For example, the American Association of University Women conducted two studies of sexual harassment in U.S. schools in 1993 and 2001 which showed that 81% of students experienced some form of sexual harassment during their school years: see David A. Wolfe, “Sexual Harassment and Related Behaviours Among Youth from Grade 9 to Grade 11,” supra, note 129.
 “The Falconer Report,” supra, note 46 at 10-11.
 See, for example, Rachel L. Osborne, “Sexual Harassment in Universities,” available online at: http:/pi.library.yorku.ca/ojs/index.php/cws/article/viewFile/10495/9584 (Retrieved: April 22, 2013).
 Daniel Drolet, “When Rites Go Wrong,” (2006) available online at: www.universityaffairs.ca/when-rites-go-wrong.aspx (Retrieved: April 22, 2013).
 See Danielle Webb, “Sexual Violence Still Rampant,” (2010) available online at: http:oncampus.macleans.ca/education/tag/sexual-assault/ (Retrieved: December 23, 2010)
 Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd.,  2 S.C.R. 536. This was again confirmed in Smith v. Mardana Ltd. (2005), supra, note 59.
 James E. Gruber and Susan Fineran, “The Impact of Bullying and Sexual Harassment on Middle and High School Girls,” supra, note 40 at 629. For additional examples, see the more detailed list included in the section entitled “Defining sexual harassment.”
 See University of Western Ontario, “Info sheet: sexual harassment,” available online at: www.uwo.ca/equity/docs/info_sheet_sexual_harassment.pdf (Retrieved: April 22, 2013).
 See, for example, Elizabeth J. Meyer, “Gendered Harassment in Secondary Schools: Understanding Teachers’ (Non) Interventions,” supra, note 66 at 556.
 Ibid. at 557; “The Falconer Report,” supra, note 46; and, Safe Schools Action Team, Shaping a Culture of Respect in Our Schools: Promoting Safe and Healthy Relationships, supra, note 96.
 Jubran v. North Vancouver School District No. 44, (2002), 42 C.H.R.R. D/273, 2002 BCHRT 10, leave to SCC refused, 2005 BCCA 201 (No. 30964). Citing Jubran, a recent decision noted that "[c]omments and conduct that are derived from derogatory stereotypes of gay men, lesbians, bisexuals and transgendered people are captured by the prohibited ground of sexual orientation, regardless of the complainant's sexual identity or the perception of the respondent": see Selinger v. McFarland, 2008 HRTO 49 [CHRR Doc. 08-480] at para. 23. For more information, see the OHRC publication, Policy on Discrimination and Harassment Because of Sexual Orientation, available at: www.ohrc.on.ca/en/resources/Policies/SexualOrientationPolicyEN (Retrieved: April 22, 2013).
 In James E. Gruber and Susan Fineran, “The Impact of Bullying and Sexual Harassment on Middle and High School Girls,” supra, note 40 at 640, the authors argue that “[a]ntibullying programs in schools have far outpaced sexual harassment prevention training, and this difference may be to the detriment of girls’ well-being and educational achievement.”
 “The Falconer Report,” supra, note 46 at 11-12.
 As discussed in Arjun P. Aggarwal and Madhu M. Gupta, Sexual Harassment in the Workplace, 3rd ed. (Toronto and Vancouver: Butterworths, 2000) at 17.
 For more information, see Kimberly J. Mitchell, et al. “Are Blogs Putting Youth at Risk for Online Sexual Solicitation or Harassment?”, Child Abuse & Neglect, 32 (2008) 277 at 279.
 The same principle would apply to other social areas, such as employment. See Foerderer v. Nova Chemical Corps.  A.B.Q.B. 349; Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789 (CanLII); Davison v. Nova Scotia Safety Assn (2005), 55 C.H.R.R. D/327(N.S. Bd. Inq.); Dastghib v. Richmond Auto Body  BCHRT 197.