I am thrilled to be featured on the front page of law times along with my firm’s managing partner, James Zibarras.
While exploring one of the legal forums I frequent, a person posted a question about an incident that occurred on a work trip with his boss:
I recently went on a business trip with my employer and many other employees, and I spent the night in a hotel room with my employer (just me and him in this two-bed room). While I was laying in bed reading with the lights on, he walked out of the bathroom naked to get something from his suitcase. He knew I was in the hotel room before he stepped into the bathroom.
I commented that I was uncomfortable seeing him naked, and he apologised and went back to the bathroom. He could clearly see that I was in the room (in full sight of him), and did seem phased that I saw him naked until I commented about it.
We are both male, and he only recently found out that I am homosexual (he is openly homosexual as well). 12 people went on this trip in total (2 per room) and he made the room arrangements.
He has previously invited me to go to the bar with him for drinks. I said no to this and he hasn’t asked again.
I would like to know if this constitutes workplace harassment.
Are you shouting at the screen “Yes! This must be sexual harassment”? Are you all ready to retweet #MeToo? Well, I wouldn’t necessarily jump to that conclusion.
Workplace harassment is governed by the Ontario Occupational Health and Safety Act RSO 1990 c O-1 and is defined as follows:
“workplace harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment; (“harcèlement au travail”)
“workplace sexual harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome;
The Ontario Human Rights Tribunal gives these examples of sexual harassment:
- demanding hugs
- invading personal space
- unnecessary physical contact, including unwanted touching, etc.
- using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
- leering or inappropriate staring
- making gender-related comments about someone’s physical characteristics or mannerisms
- making comments or treating someone badly because they don’t conform with sex-role stereotypes
- showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including on-line)
- sexual jokes, including passing around written sexual jokes (for example, by e-mail)
- rough and vulgar humour or language related to gender
- using sexual or gender-related comment or conduct to bully someone
- spreading sexual rumours (including on-line)
- making suggestive or offensive comments or hints about members of a specific gender
- making sexual propositions
- verbally abusing, threatening or taunting someone based on gender
- bragging about sexual prowess
- demanding dates or sexual favours
- making offensive sexual jokes or comments
- asking questions or talking about sexual activities
- making an employee dress in a sexualized or gender-specific way
- acting paternally in a way that someone thinks undermines their self-respect or position of responsibility
- threats to penalize or otherwise punish a person who refuses to comply with sexual advances (reprisal or “payback”).
The conduct of this employer may not clearly rise to the level of harassment. Inviting a subordinate to drinks isn’t inappropriate on its face and this boss stopped pressing once he was told no. Likewise, the incident on this business trip may simply have been a potential hazard of same-sex lodgings. This employee told his boss that it made him uncomfortable and the boss apologized and went back into the bathroom. At worst, this was a clumsy attempt at starting a sexual relationship with this employee. But, there is no mention of any conduct by this employer trying to steer conversations towards sexual subjects, making suggestive or lewd comments, pressuring this employee into initiating a sexual encounter, or threats or acts of reprisal.
In a situation like this, I would recommend the employee approach the employer, after the trip and back in the workplace, to explain that this made him uncomfortable, and that, as a result, he would prefer not to lodge with him again. He may want to follow this up with an email to keep a record.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
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