Sexual Harassment at Work: Where is the Line Between Consent and Coercion?
One of the reasons commonly given for not reporting sexual harassment in the workplace (SHIW) is that the person is unsure whether what they experienced was SHIW and would be seen as such by others in the workplace. Victims of SHIW frequently have mixed feelings about the person who is harassing them and have invited attention from that person or consented to sexually activity after having been pressured.
The Human Rights Tribunal of Ontario (HRTO) recognizes that someone can still be a victim of sexual harassment even though they have had a consensual relationship with the harasser in the past, or have “consented” after having been coerced. In NK v. Botuik, 2020 HRTO 345, for example, a young woman with a history of having been sexually abused by older men in her teens, was targeted by a supervisor while working as a direct care provider in a home. The harassment began with comments and texts and escalated to demanding massages, unwanted kissing, and coercing her into performing other sexual acts under threat of being removed from the schedule if she didn’t. The Applicant ultimately consented to seeing the supervisor outside of the workplace. Despite this, the HRTO determined that this was not a consensual relationship because of the power imbalance between the parties and the intense pressure and manipulation the Applicant had experienced prior to having consented. When the Applicant reported the sexual harassment to her employer she was suspended during an “investigation” and then her employment was ultimately terminated. The HRTO considered that the Applicant is particularly vulnerable to SHIW due to her history of abuse, single parent status and the relative power imbalance. The respondent ought to have known that, being the Applicant’s supervisor, his solicitations were inappropriate and unwelcome. HRTO awarded damages to the Applicant of $170,000.00 for the injury to her dignity, feelings and self-respect which is at the very highest end of the scale of damages awarded to date for SHIW.
The Supreme Court of Canada has also had a recent string of cases where they have acknowledged that a victim who has been coerced into having sexual relations through threats or manipulation of any sort has not legally consented to participate in that activity. For example, in R. v. Langan, 2020 SCC 33, a woman invited her boyfriend over for the night but told him to bring his own sleeping bag and told him she was not interested in having sex. Several months later she discovered she was pregnant with his child. The Trial judge and the Supreme Court justices accepted the woman’s testimony that she had not consented to having sexual activity and convicted Langan of sexual assault. Coercion can take the form of outright threats like in the Botuik case or be more subtle such badgering, guilt tripping, denying affection, putting the victim down, or not giving the victim an opportunity to say no such as occurred in the Langan case.
If ever you find yourself in a situation where you are feeling pressured to engage in sexual activity of any sort with a co-worker, supervisor or client, remember that this kind of behaviour is illegal. It is perfectly acceptable to say no even if you have said yes in the past. If the person does not stop once you have indicated to them you are not interested, you would be wise to put your objection in writing (email, text or snail mail) and to record any future conversations with that person if possible to use as evidence in an investigation or legal proceeding. You also have the option of letting your manager, human resources department and/or union representative know about the situation.
The Legal Clinic is currently offering free legal information and advice to people who have experienced or are experiencing SHIW. We are also offering free virtual training for employers and employees about how to prevent and address SHIW. Please contact Anne-Marie Langan at 613-264-7153 or email@example.com if you have any questions about SHIW and the services offered by The Legal Clinic. You can also go to our blog page at www.tlcshiwproject.com for other articles on topics related to SHIW.