Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada

Assistant Professor Bethany Hastie

The Canadian Bar Association recently awarded a grant to Assistant Professor Bethany Hastie to investigate the interpretation and application of sexual harassment laws in human rights tribunals.

About the Project: Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada

Reports on sexual misconduct in Canada’s RCMP and military had surfaced and the aftermath of the Jian Gomeshi trial had captured the nation’s attention. It was around this time that Professor Hastie began her research in the area of workplace sexual harassment. Shortly after Professor Hastie began this work, the #MeToo movement was in full swing, sparking a shift in public discourse and raising awareness on issues of sexual harassment. As part of a grant from the Canadian Bar Association, Professor Bethany Hastie will investigate the interpretation and application of sexual harassment laws in human rights tribunals. 

The Issue

The overarching principles that are used to assess sexual harassment complaints come from a Supreme Court of Canada (SCC) case, Janzen and Platy Enterprises. The case was decided almost 30 years ago and Professor Hastie’s research examines how it is being interpreted and applied today. Professor Hastie is using Ontario and BC as case studies, given their distinct legislative approaches to addressing sexual harassment. Ontario’s Human Rights Code provides specific provisions that prohibit sexual harassment and sexually poisoned work environments, whereas BC does not have any specific provisions, but rather subsumes the assessment of sexual harassment complaints under the general category of sex discrimination.

Why is this important?

When Professor Hastie began her research, she was surprised to find that although there was a very rich and dense literature and research on sexual assault in the criminal justice system, there was little contemporary research in the employment and human rights context on sexual harassment. Evidence suggests that legal claims concerning sexual harassment in the workplace are increasingly pursued through human rights tribunals, due to relaxed evidentiary and examination standards, a less adversarial atmosphere, and higher compensatory awards. One of the key aims of Professor Hastie’s research is to fill this information gap by examining whether and to what extent some of the more notorious problems we see in complaints of sexual and gender based violence in the criminal justice system are replicated in the human rights context. These include problematic myths and stereotypes concerning women and sexuality, narrow understandings of the psychological and emotional impacts of sexual misconduct on victims, and continued tendencies to responsibilize women for assault and harassment avoidance. The focus of Professor Hastie’s research lies in how legal decision makers and adjudicators understand this phenomenon. The core question driving her research asks: “do human rights tribunals replicate, or overcome, the problematic narratives about gender and sexuality that create barriers to justice for victims in criminal justice proceedings?”

To answer the question above, Professor Hastie’s project analyzes workplace sexual harassment case law at Ontario and BC’s provincial human rights tribunals, examining the interpretation and application of the law in relation to three core issues:

  1. How tribunal members understand covert or subtle forms of sexual harassment (e.g., verbal sexual harassment). 
  2. To what extent problematic myths around gender stereotypes and responsibilization for harassment avoidance are surfacing in a way that negatively impacts the complainant. 
  3. Whether and to what extent, in discussing the reasons for the remedy awarded, tribunal members demonstrate an appreciation of the complexity and array of emotional and psychological impacts that an experience of sexual harassment may have on a complainant.  

Professor Hastie’s research project will produce both a research report as well as a case law index that could be a particularly useful tool for legal practitioners, tribunal members, and policy makers. She presented preliminary findings for the BC context at the BC CLE Human Rights Law conference in November 2018, and produced a summary paper for inclusion in the CLE materials for that conference.

The contemporary social context and more nuanced understanding of sexual harassment in the past thirty years may not be fully reflected in the law. Professor Hastie’s research offers a necessary and valuable contribution to the dearth of current legal research on the topic of sexual harassment, which will have a concrete impact for legal practitioners, adjudicators, policy makers, and the general public.