Definitions

Harassment

Harassment has been defined in a number of different ways. In many Human Rights Codes and Policies, it is defined as follows:

Harassment means engagement in a course of vexatious comments or conduct that is known, or ought reasonably to be known, to be unwelcome.

Course

In most cases, behaviour must be repeated more than once in order to be considered harassment. Courts and tribunals have in some cases ruled that only one incident is sufficient to constitute harassment where the behaviour complained of is so egregious and so far beyond the scope of what is considered acceptable in our society that the person ought to have known it would be unwelcome even before the first incident of the behaviour.

Vexatious

This word has been defined as meaning without reasonable cause or excuse. Behaviour may be considered vexatious if there is no legitimate purpose behind it. As a result, showing racist posters for an academic purpose in a history, sociology or similar course at a university would not be considered harassment since the showing of such materials has a legitimate purpose; hanging the same posters in a workplace might be considered harassment.

Comment or Conduct

These two terms are designed to include in the definition all possible types of behaviour, whether verbal, physical or other. Words can be harassing but so can physical actions like intimidating gestures or the posting or circulation of offensive cartoons or e-mails.

Known

If the person accused of harassment subjectively knew that his or her behavoiur would be unwelcome, then it falls under the definition.

Ought reasonably to be known

This clause creates an objective standard. If the person claims that he or she had no idea that the behaviour would be unwelcome, but a reasonable person in the circumstances would have known, then it also falls under the definition. This clause is designed to ensure that people can be held accountable for harassing behaviours even when they have willfully or negligently ignored indications that the behaviour is unwelcome. It also ensures that a person who is the target of harassment is not required to state clearly and unequivocably that the behaviour is unwelcome. In many situations, the power relationship between the two parties is so unequal that the target simply cannot stand up against the harassment for fear of reprisal — being fired from a job, being failed from a course, being assaulted, and many other such repercussions.

Unwelcome

What is and is not harassment is defined according to the viewpoint of the target — what is acceptable behaviour to one person may not be acceptable to another. It is important to note that harassment can be found even if the person at whom the behaviour is directly targeted does not find it to be unwelcome but someone else who is exposed or affected by the behaviour does find it unwelcome. Thus, racist comments made to one person who is not bothered by them might still be harassment if they are overheard by another person who is bothered by them.

Harassment that is based on one of the human rights grounds is a type of discrimination.

Examples

• Threats, intimidation, or verbal abuse
• Unwelcome remarks or jokes about subjects like your race, religion, disability or age
• Displaying sexist, racist or other offensive pictures or posters
• Sexually suggestive remarks or gestures
• Inappropriate physical contact, such as touching, patting, pinching or punching
• Physical assault, including sexual assault

Personal Harassment

Personal harassment is difficult to define. Personal harassment is sometimes known as bullying. Most people who experience personal harassment know that they are not being treated fairly, but do not see the harassment as linked to gender, race, disability, sexual orientation or other human rights ground. For example, if someone is called a stupid idiot, this is not covered by human rights legislation, but it is harassment. It is personal harassment. Personal harassment is abusive, inappropriate behaviour that is nasty, but not discriminatory.

Examples

• Threats, coercion, insults or putdowns
• Actual or threatened physical assault
• Verbal assault, taunting, ostracizing, or exclusion
• Malicious gestures or actions

Discrimination

Discrimination means treating people differently, negatively or adversely on the basis of race, age, religion, sex, or other human rights ground. As used in human rights laws, discrimination means making a distinction between certain individuals or groups based on a prohibited ground of discrimination.

Notes:

• Harassment is a form of discrimination
• Differential treatment must result in an adverse impact to be considered discrimination
• "Equal" treatment does not necessarily mean "equitable" or "non-discriminatory" treatment — imposing the same rule on a set of individuals may have different, and potentially discriminatory, effects on each person

Legal Grounds

Under the Canadian Human Rights Act and most provincial codes, it is against the law to discriminate against any person or group in the provision of employment, accommodation or any service on the basis of any of the following grounds:

• Race
• National or ethnic origin
• Colour
• Religion
• Age
• Sex (including pregnancy and childbearing)
• Sexual Orientation
• Marital status
• Family status
• Physical or mental disability (including dependence on alcohol or drugs)
• Pardoned criminal conviction

Accommodation

Under Human Rights law, organizations must accommodate the needs of individuals and groups where those needs arise out of a protected human rights ground such as religion, disability, race, ethnic origin, marital status, or family status.

Accommodation is often defined as the provision of services, adaptations or adjustments which enable persons who require accommodation to participate, contribute and succeed in an academic, employment or service environment while still meeting their reasonable requirements arising out of their disability, religious beliefs, family obligations, etc. It is an ongoing process of identifying and removing or minimizing the adverse effects of barriers in the environment, its systems, policies and procedures which prevent otherwise qualified persons covered by the Code from participating successfully. The process of accommodation involves consultation with the person seeking accommodation and results in specific adaptations and/or modifications in policies and/or practices.

Accommodation is understood as any temporary or permanent measure used to remove a barrier which prevents an otherwise qualified individual from performing or fulfilling the essential duties of a job or academic pursuit or enjoying a service;

Accommodation is based on individual circumstances, including but not limited to the following:

• Communication such as producing documents in other languages or alternative media formats
• Technical aids such as software or hardware
• Policy and practice modification such as modifying training policy so people with child or elder care obligations can attend courses during work hours if they make up the time
• Job or course redesign which is defined as restructuring the job by re-allocating or redistributing nonessential functions
• Human supports such as sign language interpreters, job coaches to help in the initial training and integration of persons with psychiatric or developmental disabilities
• Workstation or building modification such as ramps for access to buildings
• Revised scheduling so that individuals may participate in the rites associated with their religious faith

Rules and Guidelines

• The focus of all efforts to accommodate must be on collaboration (involving the person seeking accommodation in the decision-making process) and dignity (ensuring that the accommodation provided allows the person to maintain their dignity).
• The person seeking accommodation must be reasonable in the mode of accommodation which he or she will accept — a person is not entitled to an ideal accommodation when another type of accommodation (that might be cheaper, easier, less intrusive) will achieve the same goals with no loss of dignity on the part of the person.
• The organization is required to accommodate a person’s disability to the point of undue hardship, meaning that the cost of the accommodation will irrevocably damage the organization.
• An organization is not required to accommodate a person, however, where the person is incapable of fulfilling the bona fide occupational or academic requirements of the job or course, even when appropriate accommodation is provided.
• An organization is not required to accommodate a person where, even with the accommodation, the person’s presence would create a health or safety risk to him- or herself or to others.

Sexual harassment

The term "poisoned environment" is most often used in the context of sexual harassment. A poisoned environment is one that is hostile, intimidating and demeaning for one or more persons of a particular group or identity. Courts and tribunals have used various terms including "atmosphere of discrimination" and "sexually derogatory work environment" to describe a workplace that is poisoned by sexual harassment.

Under this type of harassment, the individual is forced to work, study or live in an environment that is intimidating, hostile and offensive. The environment becomes unpleasant or unbearable to the victim because of a pattern of comments, insults and hostility.