Harassment in the Workplace: What the Law Says and How to Prevent It

The problem of harassment in the workplace has become front-page news in recent months, after several prominent figures in the media and entertainment industries were accused of harassment, assault and worse by individuals in the United States, Europe and Canada.

It’s an appropriate time to talk about what is considered to be harassment according to workplace legislation in Québec; how harassment in the workplace can be prevented; and what steps you can take if harassment is taking place at your workplace.

What is workplace harassment?

Workplace harassment can be described as the act of submitting a person to repeated attacks – verbal, behavioral or otherwise – with the intent to weaken or intimidate that person. These attacks may come in the form of criticisms, demands, offers or other forms of pressure. The law emphasizes that it is the repetition of such behavior that constitutes harassment, but also allows for the possibility that a single act, if serious enough in nature, can be considered harassment.

Psychological harassment can take many forms, including talking about inappropriate topics or sexual harassment.

In what types of situations can workplace harassment occur?

It’s a misconception that harassment in the workplace can only happen in the context of a hierarchical relationship – for example, between an employer and an employee.

In fact, harassment in the workplace can be present in any number of work situations: it can happen between an employee and their superior; between a client and an employee or supplier; or between two employees in the same organization.

The law makes it clear that the hierarchical relationship between people involved in a harassment claim, if such a relationship exists, is not considered relevant to the alleged harassment.

So, in practical terms, what is harassment?

This is the hard part. Québec’s workplace legislation, the Act respecting labour standards, precisely defines the concept of psychological harassment, and there are four criteria that must be met in order for behavior to be considered harassment under the law.

To be considered harassment, a person’s conduct must be:

1. Vexatious behavior (humiliating or offensive to any person who experiences it) and repeated (or very serious).
2. Hostile (aggressive or menacing) or unwanted conduct (meaning non-solicited or unwelcome. It is not necessary for a refusal or disagreement to be uttered by the victim in order for conduct to be considered harassment).
3. The conduct must attack a person’s physical or psychological integrity, or their dignity.
4. The conduct must create a harmful workplace environment.

What is not considered workplace harassment?

Any conduct that does not meet all four of the above criteria is not considered harassment under the law.

For example, if an employee does not want to work with a colleague because they don’t like the way the person works, and expresses this opinion in one way or another, this does not constitute harassment. This is because an individual may be particularly sensitive and simply refuse to accept any criticism or comment made by their colleagues. The person may feel offended – but the law says they haven’t been harassed.

Employers can also voice constructive criticism of an employee’s work, as well as the work of suppliers or clients, without the criticism being considered harassment. Harassment must not be confused with the right of a business owner or manager to fulfill their duties.

What the law says: Who is protected against harassment? Who is responsible when it happens?

It’s important to remember that Quebec’s workplace legislation does not apply to all workers in the province. Self-employed workers and employees of federally-regulated organizations – including government offices, banks, and national media – are not protected by the legislation. These workers are covered by federal workplace protection laws.

The Act respecting labour standards is very clear about the rights and obligations of individuals who the laws apply to. Every worker has the right to enjoy a harassment-free workplace, which includes freedom from harassment of a moral or sexual nature. Every employer must take steps to prevent psychological harassment, and address every situation of harassment that is brought to their attention.

The obligations of employers

1. The primary obligation of the employer is to prevent all forms of discrimination in the workplace. This doesn’t mean that the employer’s organization will never be the site of discrimination, but simply that the employer must take all reasonable steps to prevent discrimination from occurring.

The prevention of discrimination can be promoted in several ways. Specialized training for new employees, the appointment of an employee to bring any harassment concerns presented by colleagues to the attention of the organization, or the development of an anti-harassment policy as part of workplace regulations are all useful tactics for preventing discrimination.

2. The second obligation of the employer is to take steps to resolve any claim of harassment that is brought to their attention. The appropriate steps to take in response to a claim of harassment can range from having a one-on-one discussion with the person who is being harassed, to taking disciplinary measures against the alleged harasser.

What recourse is available to individuals who believe they are the victim of workplace harassment?

A person who feels that they have been harassed at work has several avenues of recourse available to them under the law. They can:

1. Tell their employer about the situation.
2. Get in touch with the member of the organization who is tasked with handling harassment claims, if there is such a person.
3. Contact their union representative.
4. Attempt to remedy the situation by themselves by speaking with the person who they feel is harassing them.
5. Speak with a lawyer or legal counselor.
6. File a complaint against their employer or the person they are accusing of harassment.

If the worker who believes they have been the victim of harassment is protected under Québec’s workplace legislation, they can prompt their employer to action by filing a complaint against them. This complaint is valid under the law, because the employer is obligated to take action in response to any report of harassment within their organization.

If the employee claiming harassment wants to file a complaint against their harasser, this is also possible under other legislation. For example, the victim could file a complaint with the police, or bring their alleged harasser to court.

How do you file a workplace harassment complaint?

Under Québec law, a harassment complaint must be filed within 90 days of when the most recent alleged harassment occurred and must be filed with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).

In order for the complaint to be considered by the Commission, it must be submitted:

1. By a person protected under Québec’s workplace protection legislation;
2. Within a maximum of 90 days after the most recent harassment occurred;
3. Based on alleged behavior that meets the four criteria necessary to be considered harassment by the law.

What is the procedure followed by CNESST if the complaint is considered actionable?

Mediation
The CNESST will name an official mediator, who will work with the employee and the employer to establish a line of communication and work toward a solution, without involving the justice system. Either of the parties can choose to refuse mediation.

Investigation
If mediation is refused or fails to reach a solution, the CNESST will begin an investigation. The investigator can meet with the parties involved, interview witnesses or visit the officers of the employer.

Decision of whether or not the employee will be represented by the CNESST
Based on the findings of the investigation, the CNESST will decide whether or not they will represent the complainant before the “Tribunal administratif du travail”. This is the tribunal that will hear the complaint and decide if the worker has been the victim of harassment. The CNESST will handle the case on behalf of the alleged victim and provide the victim with a lawyer to represent them before the tribunal.

If the CNESST declines to represent the worker alleging harassment, the worker can request an appeal of the decision or provide their own representation before the tribunal.

Arbitration
With the approval of both parties, the tribunal can name an arbitrator who will work to find a solution that will satisfy both parties. At this stage, the defending and prosecuting parties can be assisted by their respective legal representatives.

The hearing
If arbitration fails, the tribunal will decide after the hearing if harassment took place, and if the employer fulfilled their legal duties to prevent harassment.

The decision
If harassment and inaction by the employer are proven during the hearing, the tribunal may decide to: take steps to ensure the harassment stops, return the employee to their job, mandate that the employer pay a cash sum to the employee to compensate for the harassment they suffered, or to punish the employer for their inaction.

Whether you are an employer or an employee, it’s crucial that you react quickly when harassment is brought to your attention – the situation cannot be allowed to get worse. Take action!