Sexual Harassment and Sexual Assault in the Workplace: Is this Something New?

By  Linda McKay-Panos

Reposted with permission from (May/June 2018) 42(5) LawNow

There has been a great deal of attention in the media lately about allegations of sexual assault and sexual harassment in the workplace. The current “#MeToo Movement” was thought to have started after public accusations of sexual misconduct by former American film producer Harvey Weinstein. The hashtag #MeToo actually developed from the term “Me Too” coined by American civil rights activist, Tarana Burke, who had used the term since 2006 to raise awareness about sexual abuse and sexual assault in. In October 2017, when after allegations were made against Harvey Weinstein, actress Alyssa Milano encouraged social media users to tweet #MeToo (or its equivalent in other languages) widely in order to raise awareness about the prevalence of sexual harassment and sexual assault.

The #MeToo Movement in the United States has been followed by allegations against public figures in many countries, including Canada. For example, Michel Brûlé, a mayoral candidate for Plateau-Mont-Royal, Quebec, dropped out of an election due to several allegations of sexual abuse made by women. In January 2018, allegations of sexual misconduct ended the tenure of Progressive Conservative leaders in Ontario and Nova Scotia. This was followed by Federal Minister Kent Hehr’s resignation from the Federal Cabinet amid allegations of sexual harassment that had occurred during his time in office in Alberta’s provincial legislature. All of the current attention in media and social media is focused on public figures who are accused of sexual harassment and/or sexual assault and not on every day figures.

These are not just experienced in public life or in Hollywood. They occur in all workplaces. Sexual harassment was first legally recognized as a form of gender (sex) discrimination under human rights law in the Supreme Court of Canada decision of Janzen v Platy Enterprises Ltd., [1989] 1 SCR 1252. Further, sexual assault (or a similar offence) has been a crime since Canada incorporated British law into our own Criminal Code in 1892 (Criminal Code, SC 1892, c29). This is not to say that the crime of sexual assault has not needed to be amended to reflect feminist and other concerns. For example, in the 1980s, the offence of “rape” (a man having sexual intercourse with a woman who was not his wife) was changed significantly to the broader “sexual assault”, and no longer excluded males or wives as potential victims of the crime of sexual assault.

What has long been a struggle for all people experiencing both sexual assault and sexual harassment is that many victims do not report the crime or the discrimination (sexual harassment) to their supervisors, human rights bodies or the police. There are many good reasons for this, which desperately need to be addressed. Statistics Canada noted in 2014 that sexual assault is “one of the most underreported crimes” in a report by Shana Conroy and Adam Cotter. Their report shows that in 2014, for example, there were approximately 636,000 self-reported incidents of sexual assault in Canada—compared to 20,735 police-reported incidents of sexual assault in the same time period.

There has been research that indicates that the reasons for underreporting sexual assault include (Conroy and Cotter):

• Shame, guilt and stigma of sexual victimization;
• Normalization of inappropriate and unwanted sexual behaviour; and
• The perception that sexual violence does not warrant reporting.

Clearly, the vast majority of sexual assault victims are women and nearly half of all sexual assault incidents are women aged 15 to 24, according to the Conroy and Cotter report. Also, more than one in five Aboriginal women report(s) being sexually assaulted. Conroy and Cotter also found that the risk of sexual assault is also increased for people with mental disabilities or mental health issues, those who have substance abuse issues, those who are single, people who are performing activities, such as work, socializing, meetings etc. in the evening, students on campuses, people who are not heterosexual, and people who experienced childhood abuse, homelessness and stalking. These are often the most vulnerable people in our society. Frequently their abusers are NOT public figures or famous personalities.

Sexual harassment is also underreported. A 2017 Insights West Survey of sexual harassment in Canada reported that 50% of working women in Canada say that they have experienced some form of sexual harassment over their careers. Yet, only 28% of working women in Canada, who endured behaviour that had placed a condition of a sexual nature on their employment or any opportunity they might have on their future career, reported this to a superior or to the human resources department (2017 Insights West).

The reasons noted in the 2017 Insights West report for not reporting sexual harassment include:

• Thinking it wasn’t important enough to bother reporting (41%);
• The idea that they would be perceived as trouble makers (34%);
• Believing that their employer would not do anything about what had happened (30%);
• Believing that the employer would dismiss their complaint as being unimportant (30%);
• Feeling too embarrassed (30%); and
• Fearing retaliation from the person who behaved that way (27%).

Are sexual harassment and sexual assault in the workplace a new phenomena? Hardly. Sexual harassment addresses a broader range of behaviours than does sexual assault. Sexual assault requires intentional physical contact of a sexual nature that is not consented to. Sexual harassment can include physical contact but also includes any unwanted sexual attention (per the SCC in Janzen v Platy Enterprises Ltd.). Incidents of sexual harassment experienced by Canadian working women reported in the 2017 Insights West survey include:

• Unwanted sexual comments, conversation or innuendo from a co-worker (37%) or from a boss/manager/superior (24%).
• Unwanted physical touching, cornering or patting from a co-worker (33%) or from a boss/manager/superior (20%).
• Cat-calls, whistles, or being referred to using derogatory or demeaning sexual terms from a co-worker (28%) or from a boss/manager/superior (19%).
• Unwanted pressure for dates with a co-worker (23%) or from a boss/manager/superior (14%).
• Presence of pornography, or other sexually graphic images at work (18%).
• Unwanted pressure for sexual activity from a co-worker (17%) or from a boss/manager/superior (14%).

Not addressing these behaviours can cost employers money (e.g., they are legally responsible for sexual harassment that occurs in their workplaces, especially if they fail to address it appropriately) and can create a poisoned work environment that affects productivity.

Sexual assault and sexual harassment are serious issues. They have existed for a long time and since the number of women in the workplace has steadily increased, alarming numbers of people experience sexual harassment and sexual assault. It seems that allegations of sexual harassment and sexual assault made against people in public life, those who are movie stars or who are otherwise famous are now gaining attention and resulting in some serious consequences for the alleged perpetrators. However, will people without the power of media scrutiny, those who fear retribution or lack of support from their employers, or those who hear about the often nasty public ordeal faced by women who come forward to complain about sexual assault, be assisted at all by the #MeToo movement?