Defining Sexual Harassment in the #MeToo Era: Addressing borderline cases

Sexual harassment in the age of the #MeToo movement has put the workplace under the microscope. While some conduct clearly crosses the line, there are many other cases that fall within a grey area of potentially objectionable behaviour. Whether it’s grooming behaviour leading to more overt actions or simply a case of someone who does not read social cues, the question of whether less overt conduct constitutes sexual harassment is not always black-and-white. In this session, legal experts will clarify the grey areas, addressing issues such as:

• Defining sexual harassment: How has sexual harassment been defined? What is the test to establish whether conduct is unsolicited or unwelcome? Is the question of whether the conduct is “unwelcome” evaluated on an objective basis? Does sexual harassment require a “course” of vexatious conduct, or can a single incident constitute sexual harassment? What factors do adjudicators examine in order to distinguish between normal social interaction and harassment?
• Borderline conduct: What type of behaviour has been held to constitute harassment? Staring and leering? Standing too close? Complimenting a person’s appearance? Asking questions about an employee’s personal life? A one-off disparaging remark? Touching on the shoulder or waist? Will the fact that the employee finds the conduct to be offensive be sufficient to establish sexual harassment?
• Power imbalances: Can a power differential elevate otherwise normal social activity to the level of sexual harassment? Do adjudicators apply greater scrutiny to the question of whether advances were welcome when assessing cases where there is an imbalance of power, such as a supervisor-employee relationship? Do supervisors have to take steps to ensure that their conduct is truly welcome, requiring more than simple acquiescence?
• Other considerations: Do adjudicators examine the overall workplace atmosphere (such as a relaxed and informal atmosphere, or one where sexual banter, joking and flirting, is common) in assessing whether conduct constitutes sexual harassment? How important are contextual factors such as the situation, history of the relationship, tone of delivery, and nonverbal behaviours? Is protest or objection to the allegedly harassing behaviour a precondition to a finding of harassment?
• Disciplinary responses: Do legislative provisions imposing a duty on employers to prevent workplace sexual harassment now require that the offending employee be discharged or otherwise modify the principles of progressive discipline? When, if ever, will alternatives to dismissal such as relocation to a different workplace be suitable?
• Addressing borderline conduct: Are there any measures that employers and unions should take to address borderline conduct to ensure that it does not cross the line into sexual harassment? Should workplace policies adopt a more specific definition of sexual harassment, including borderline behaviour, in an attempt to set out clear boundaries?