Under Ontario Health and Safety legislation, harassment in the workplace is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” It is important to examine what this definition entails, both on the part of employees and employers seeking to implement and maintain anti-harassment polices that are legally required in every workplace under the Occupational Health and Safety Act in Ontario.
Breaking down the definition of Workplace harassment:
1. “A course of vexatious comment or conduct against a worker …..”
The first part of the legal definition of workplace harassment requires there to be a course of vexatious comment or conduct. In a practical sense, suppose a worker buys another worker a flower. If this causes the recipient vexation (feeling of discomfort, expressing the flower was unwanted, or any cues that suggest the flower caused the recipient vexation), then this should signal to the gift-giver that this behaviour is unwelcome. At this point, there is no act of harassment. However, if a course is established through repeated gift-giving at this point, the first part of this definition will be satisfied.
2. “…. that is known or ought reasonably to be known to be unwelcome”
The last part of the definition is important to understand correctly. The test of whether the act constituted workplace harassment, here, is objective by definition. This means that the person conducting the act cannot claim to not have known the conduct was unwelcome as a defence against an allegation. If a reasonable person is able to conclude that the act on its own was unwelcome, this would complete the definition and allegation of workplace harassment. The law here is not concerned whether the individual intended or was aware that such act was unwelcome; rather, it is the act itself that is to be considered when determining whether workplace harassment has occurred.
Employers need to communicate the definition of workplace harassment to employees through clear and accurately stated policy and orientations. Not only is it necessary to hold workers accountable; anti-harassment policy is required under law.