Harassment doesn’t always stem from targeted acts and comments

By Jeffrey R. Smith

Workplace harassment can come in many forms. It’s often pretty obvious – inappropriate behaviour or bullying co-workers is hard to miss when it’s happening. Sometimes it may be less obvious and more sneaky — such as snarky asides, dirty looks and leering — that maybe only the harasser and the victim are aware of.

What the different types of harassment have in common is they make people feel uncomfortable and discriminate against them based on personal characteristics.

The Canadian Human Rights Commission defines harassment as “any unwanted physical or verbal behaviour that offends or humiliates you.” As examples, the commission points to jokes or threats based on a protected ground of discrimination or unwelcome physical contact. It doesn’t matter who is doing it and who is the recipient, if common sense dictates it’s inappropriate, it’s likely harassment.

But what if the behaviour in question is not specifically directed at anyone and the person doing it thinks it’s in private without wanting anyone else involved?

A recent arbitration case out of Nova Scotia exposed problems an aerospace company operating out of the Halifax airport had with a worker while in the office washroom. Employees reported strange noises coming out of the washroom and it soon became clear that the worker was involved in some “self-love.” So employees who saw him exit the washroom after these sessions identified him to the employer.

Management met with the worker and asked him about the unusual noises and said they weren’t appropriate. The worker suspected they were referring to him masturbating in the washroom but didn’t want to talk about it because he felt it was a private issue. However, a couple of years later, employees complained again about a man masturbating in the washroom and making related sounds, as well as sounds possibly coming from pornographic videos on his smartphone.

Management investigated and ultimately terminated the worker’s employment for breaching the employer’s harassment policy and code of conduct. An arbitrator upheld the dismissal, finding the worker had been made aware that his behaviour was inappropriate and disturbing his co-workers.

Though the worker may have intended his activity to be private and separate from his co-workers, the reality was that it was sexual activity normally conducted in private that was being performed in close proximity to his co-workers. The employer’s harassment policy warned against “behaviour, often recurrent in nature, which negates an individual’s dignity and the respect to which they are entitled because the behaviour is offensive, embarrassing, or humiliating” — the worker was guilty of such behaviour and he had been warned previously about it. See UNIFOR, Local 2215 and I.M.P. Group Limited (Aerospace Division) (May 15, 2019), A.M. Richardson, QC – Arb. (N.S. Arb.).

Most human rights legislation links harassment to behaviour that the perpetrator knew “or ought to have known” the behaviour was unwelcome. Though the worker intended for his behaviour to be private, the location he chose to partake in it — the washroom at work near his co-workers — wasn’t private and he ought to have known it was unwelcome behaviour that embarrassed and offended his co-workers.

Employees have to be aware of their behaviour at work and the potential to make co-workers uncomfortable. Even if it’s not directed at anyone in particular, it can still end up harassing someone if it’s behaviour that one can reasonably consider to be inappropriate in the workplace.

Employers as well need to be ready to act when they become aware of such behaviour — an initial warning and further discipline if it continues, for example.

It doesn’t matter if there’s no specific target — careless and inappropriate behaviour in the workplace can have harassing collateral damage.