Is it Harassment? A Tool to Guide Employees

These tools supporting the former harassment and conflict resolution process will be archived by December 31, 2021 . They will still be available for old cases filed prior to Jan 1, 2021 .

Table of Contents

• How to use this tool
• Definition of Harassment
• Where can workplace harassment occur?
• What criteria have to be met to establish whether there was harassment?
• Time limit to file a complaint
• Examples of what constitutes workplace harassment
• Examples of what does not constitute workplace harassment
• To help frame the situation, ask yourself:
• Poisoned work environment
• If you believe you have been harassed
• Annex A — Examples of what may or may not constitute harassment
• Annex B — Scenarios with examples of what may or may not constitute harassment

How to use this tool

This tool will serve to help you in the analysis of a situation you believe might be workplace harassment. This tool can be used as a starting point in your analysis to help you better understand what constitutes harassment under the Treasury Board policy definition. It is to be used solely as a guide to assist you in reflecting on the circumstances of your situation.

If, after reading this document, you are still unsure if your situation is harassment, please consult your manager, a departmental harassment prevention advisor, a departmental informal conflict resolution practitioner, the Employee Assistance Program or a union representative.

Each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole. The impact on you, the complainant, should be significant as harassment is serious.

Definition of Harassment

improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction).

More specifically, harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.

Essentially, the definition of harassment means that more than one act or event is needed in order to constitute harassment and that taken individually, this act or event need not constitute harassment. It is the repetition that generates the harassment. In other words, harassment consists of repeated and persistent behaviours towards an individual to torment, undermine, frustrate or provoke a reaction from that person. It is a behaviour that with persistence, pressures, frightens, intimidates or incapacitates another person. Each behaviour viewed individually may seem inoffensive; it is the synergy and repetitive characteristic of the behaviours that produce harmful effects.

However, one single incident can constitute harassment when it is demonstrated that it is severe and has a significant and lasting impact on the complainant.

Note 1: The legitimate and proper exercise of management’s authority or responsibility does not constitute harassment.

Note 2: Sexual and physical assaults are defined by the Criminal Code and will be dealt with according to that legislation. If you have been assaulted, you should seek assistance immediately and contact the police.

Where can harassment occur?

The scope of the policy applies to employee behaviours in the workplace or at any location or any event related to work, including while:

• On travel status,
• At a conference where the attendance is sponsored by the employer,
• At employer sponsored training activities/sessions, and
• At employer sponsored events, including social events.

What criteria have to be met to establish whether there was harassment?

Harassment is serious. To substantiate harassment allegations, it must be demonstrated that, according to the balance of probability:

• The respondent displayed an improper and offensive conduct including objectionable acts, comments or displays, or acts of intimidation or threats, or acts, comments or displays in relation to a prohibited ground of discrimination under the Canadian Human Rights Act;
• The behaviour was directed at the complainant;
• The complainant was offended or harmed, including the feeling of being demeaned, belittled, personally humiliated or embarrassed, intimidated or threatened;
• The respondent knew or reasonably ought to have known that such behaviour would cause offence or harm;
• The behaviour occurred in the workplace or at any location or any event related to work, including while on travel status, at a conference where attendance is sponsored by the employer, at employer sponsored training activities/information sessions and at employer sponsored events, including social events; and
• There was a series of incidents or one severe incident which had a lasting impact on the individual. Note that in the case of sexual harassment particularly, a single incident may be viewed to be more significant in circumstances when your relationship at work is one where the respondent has influence or power over you with regard to career advancement, performance review, absenteeism, day to day management of activities, work assignments and the carrying out of progressive disciplinary measures.

In order to make a finding of harassment, each of the above elements must be present. If even one of these elements cannot be proven, there will not likely be a finding of harassment.

Time limit to file a complaint

A complaint of harassment must be filed within twelve months of the last event of alleged harassment leading to the complaint unless there are extenuating circumstances. The information provided must be as precise and concise as possible.

Allegations can go back further in time to describe incidents or events if you can demonstrate that they are directly related to the last event of alleged harassment that led to your complaint. This is especially necessary in cases where you intend to demonstrate a pattern of events.

Examples of what constitutes harassment when repeated or one single severe event

• Preventing a person from expressing himself or herself: yelling at the person; threatening; constantly interrupting that person; prohibiting the person from speaking to others.
• Unwanted sexual advances which may or may not be accompanied by threats or explicit or implicit promises.
• Making rude, degrading or offensive remarks.
• Making gestures that seek to intimidate.
• Engaging in reprisals for having made a complaint under this Policy.
• Discrediting the person by spreading malicious gossip or rumours, ridiculing him/her, humiliating him/her, calling into question his/her convictions or his/her private life, shouting abuse at him/her.
• Compelling the person to perform tasks that are inferior to his/her competencies that demean or belittle him/her, setting the person up for failure, name calling in private or in front of others.
• Isolating the person by no longer talking to him or her, denying or ignoring his or her presence, distancing him or her from others.
• Destabilizing the person by making fun of his or her beliefs, values, political and/or religious choices, and mocking his or her weak points.
• Harassing a person based on a prohibited ground of discrimination (as described in Canadian Human Rights Act and contained in the Policy).

Examples of what does not constitute harassment

• Normal exercise of management’s right to manage such as the day-to-day management of operations, performance at work or absenteeism, the assignment of tasks, reference checks, and the application of progressive discipline, up to and including termination, constitute the legitimate exercise of management’s authority. (Note. While exercising the normal managerial functions is not harassment, how such functions are exercised can risk giving rise to the potential for harassment or perceptions of harassment.)
• Workplace conflict in itself, does not constitute harassment but could turn into harassment if no steps are taken to resolve the conflict.
• Work related stress in itself does not constitute harassment, but the accumulation of stress factors may increase the risk of harassment.
• Difficult conditions of employment, professional constraints, and organizational changes.
• A single or isolated incident such as an inappropriate remark or having an abrupt manner.
• A social relationship welcomed by both individuals.
• Friendly gestures among co-workers such as a pat on the back.

For more detailed information on what may or may not constitute harassment, refer to Annexes A and B.

To help frame the situation, ask yourself:

• What was the context in which the incident(s) took place?
• Was the behaviour improper?
• Was the behaviour directed at me?
• Was I offended by the behaviour?
• Did the incident occur within the scope of the Policy?
• Was this the first incident or is it a series of incidents?
• What is my work relationship with this individual?
• Are individuals doing things, saying things to make me feel uncomfortable?
• Would a reasonable person well informed of all the circumstances and finding himself or herself in the same situation as yours view the conduct as unwelcome or offensive? The behaviour in question is not only assessed by the impact or effect on yourself, but it is also assessed against a reasonably objective standard.
• Did the behaviour exceed the reasonable and usual limits of interaction in the workplace? Would a reasonable person be offended or harmed by this conduct?
• As I describe and evaluate my work environment, are there other factors contributing to the situation (level of stress, workload, professional constraints, etc.)?
• Am I being singled out and treated differently than my colleagues, being given the “silent treatment”?
• Is the incident related to my work performance?
• Am I being criticized regularly even though my standards have not changed and my performance has always been satisfactory or better?
• Am I being blamed for mistakes I believe are not my fault?
• What impact(s) and/or consequences did this incident(s) have on me?
  • Physically?
  • Emotionally?
  • Professionally?

  Poisoned work environment

  A poisoned work environment refers to a workplace in which comments or behaviours create a hostile or offensive environment for individuals or groups and negatively affects communication and productivity. These activities (e.g., yelling at no one in particular; pounding a desk in frustration) are not necessarily directed at anyone in particular.

  All employees are expected to act towards other individuals professionally and respectfully and to speak out against unacceptable behaviours in the workplace in a skillful and sensitive manner. As the improper conduct is not directed at anyone in particular, as per the definition of harassment, a witness may not file a harassment complaint. Witnessing offensive behaviour towards others in the workplace does not constitute harassment for that witness. However, the situation should be reported to the supervisor or to the manager at the next level and prompt action is expected to be taken. All managers are expected to intervene promptly when they become aware of improper or offensive conduct even when no complaint has been made.

  However, please note that a behaviour not directed at any one identifiable person becomes harassment only when it relates to a prohibited ground of discrimination (such as displaying sexually explicit material or telling racist or religious jokes).

  If you believe you have been harassed

  If you believe that you have been harassed, you are encouraged to make it known to the other person as soon as possible in an attempt to resolve the problem. The earlier the problem is addressed and discussed, the better the chance of it being resolved and the inappropriate behaviour stopped.

  If the problem is not resolved, or if you feel you cannot speak directly to the other person, you should notify your supervisor, or the manager at the next level.

  In order to take the next steps to resolve this situation, you can also seek advice/support from:

  • a departmental Informal Conflict Resolution practitioner
  • a departmental Human Resources Branch
  • a union representative
  • a departmental Harassment Prevention advisor
  • a Labour Relations advisor
  • the Employee Assistance Program
  • Other departmental resource person (Elder, Ombudsman)

  Annex A — Examples of what may or may not constitute harassment

  Remember that each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole.

  Examples of inappropriate behaviour that is not harassment but still needs to be addressed

  • Talking loudly in the workplace.
  • Always being in a bad mood.
  • Slamming doors.
  • Constantly interrupting colleagues in a meeting.
  • Barging in on colleagues who are having a conversation.
  • Whining about trivial things.

  What does not generally constitute harassment

  • Carrying out managerial duties where the direction was carried out in a respectful and professional manner.
  • Allocating work.
  • Following-up on work absences.
  • Requiring performance to job standards.
  • Taking corrective or disciplinary measures when justified.
  • A single or isolated incident such as an inappropriate remark or abrupt manner.
  • Exclusion of individuals for a particular job based on specific occupational requirements necessary to accomplish the safe and efficient performance of the job.
  • A social relationship welcomed by both individuals.
  • Friendly gestures among co-workers such as a pat on the back.
  • The normal exercise of management rights. Footnote 1
  • Supervisory mistakes.
  • Work-related stress.
  • Conditions of work or study.
  • Difficult professional constraints such as a budget reduction exercise
  • Conflicts. Footnote 2
  • Constructive criticism about the work mistake and not the person.
  • Counseling an employee on his performance appraisal when done in a non discriminatory or harassing manner.

  What may constitute harassment

  • Criticizing, insulting, blaming, reprimanding or condemning an employee in public.
  • Exclusion from group activities or assignments without valid reason.
  • Statements damaging to a person's reputation.
  • Making sexually suggestive remarks.
  • Physical contact such as touching or pinching.
  • Removing areas of responsibility for no real reason.
  • Inappropriately giving too little or too much work.
  • Constantly overruling authority without just cause.
  • Unjustifiably monitoring everything that is done.
  • Blaming whenever things go wrong without just cause.

  What generally constitutes harassment

  • Serious or repeated rude, degrading, or offensive remarks, such as teasing related to a person's physical characteristics or appearance, put-downs or insults.
  • Displaying sexist, racist or other offensive pictures, posters, or sending e-mails related to one of the eleven grounds prohibited under the Canadian Human Rights Act.
  • Repeatedly singling out an employee by assigning him/her with demeaning and belittling jobs that are not part of his/her regular duties.
  • Threats, intimidation or retaliation against an employee, including one who has expressed concerns about perceived unethical or illegal workplace behaviours.
  • Unwelcome social invitations, with sexual overtones or flirting, with a subordinate.
  • Unwelcome sexual advances which may or may not be accompanied by promises or threats, explicit or implicit.
  • Intimidation, threats, verbal abuse, blackmail, yelling or shouting.
  • Caressing, kissing or fondling someone against his or her will (could be considered assault).
  • Comments destroying a person's reputation, repeated insinuations or unfounded accusations.
  • Insults or humiliations, repeated attempts to exclude or isolate a person.
  • Invasion of personal space (getting too close for no reason, brushing against or cornering someone).
  • Persistently asking someone out, despite being turned down.
  • Regularly following or constantly waiting for someone, watching that person's comings and goings.
  • Racist and discriminatory comments or offensive jokes.
  • Inappropriate questions, suggestions or remarks about a person's sex life.
  • Systematically interfering with normal work conditions, sabotaging places or instruments of work.
  • Abuse of a situation of formal or informal authority or power to threaten a person's job or undermine his or her performance.
  • Bullying (physical, verbal, social, cyber) for example humiliating a person in public settings in order to control the emotional climate at work.
  • Falsely accusing and undermining a person behind closed doors, controlling a person's reputation by rumor-mongering, controlling the person by withholding resources (time, budget, autonomy, training) necessary to succeed.
  • Humiliating a person in front of colleagues, smear campaigns.
  • Arbitrarily taking disciplinary action against an employee.

  Annex B — Scenarios with examples of what may or may not constitute harassment

  Example 1

  What does not constitute harassment

  Bob is a supervisor. Dan, one of his staff consistently does not finish his tasks and leaves them for the person on the next shift. Bob has spoken to him twice in a courteous manner and has left him two notes. As Dan's performance does not improve, Bob meets him again to discuss work objectives, standards and deadlines.

  What may constitute harassment

  Bob meets with Dan a third time and becomes impatient with him by raising his voice during the meeting and by making accusatory statements such as you are incompetent.

  What is harassment

  Bob speaks to Dan in a belittling and demeaning manner and calls him a slow, lazy and incompetent person. He has threatened to fire him on more than one occasion if he doesn't shape up and has warned him that there are lots of people waiting in line to take his place. In a fit of rage, Bob throws Dan's report in the garbage and laughs sarcastically at Dan.

  Dan feels that Bob had been rude to him by making degrading and offensive comments and fears Bob's behaviour towards him. He feels his livelihood is also being threatened.

  Example 2

  What does not constitute harassment

  The Workplace emergency response team are out on an exercise. Once completed, and after working hours, the team decides to go to the local pub. One of the team members, Louise, a new employee, and Mike exchanged on a political topic. Both shared different views of the issue.

  What may constitute harassment

  When it is time to leave, Mike, who had too much to drink, "hits" on Louise, the designated driver, and then tells her "where to go" by using profane language. Louise is upset by the incident and approaches her union representative the following morning. Mike, Louise and the union representative meet, Mike acknowledges his inappropriate behaviour and offers an apology to Louise. Louise accepts the apology.

  What is harassment

  Mike returns to the workplace and speaks to his colleagues about Louise's reaction and refers to her as a "cry-baby", a whiner and tries to convince them that she does not belong on the Emergency response team. He deliberately ignores her by not answering her questions and winks at his colleagues whenever she speaks in a meeting.

  Louise had accepted Mike's apology and believed that the incident had been resolved informally. She now feels that this incident has 'crept' into the workplace and has a detrimental impact on her and on her relationships with Mike and her other colleagues.

  Example 3

  What does not constitute harassment

  Albert, a term employee, has been waiting for two weeks to have his summer holidays approved. He has asked his manager Pierre twice and each time Pierre responded that he was busy and that he would get back to him as soon as he had some time.

  What may constitute harassment

  In the course of a conversation with a colleague, Albert learns that everyone else's leave has been approved for some time now. Albert also learns that everyone's term position has been extended as well except his. Albert recalls other occasions where he has had problems getting things approved, for example professional opportunities and family related leave.

  What is harassment

  Albert schedules more than one appointment with Pierre to discuss his concerns. Pierre cancels all appointments at the last minute without having valid reasons for doing so.

  Albert feels isolated and singled out in his sector and believes Pierre is abusing his authority by withholding leave approval and blocking career opportunities for advancement.

  Footnotes

  Footnote 1

  Exercising the normal supervisory functions such as assigning and appraising work is not harassment, but how such functions are exercised can risk giving rise to the potential for harassment or perceptions of harassment.

  Unresolved conflicts and build-up of stress inducers can be harassment risk factors.