by David Westcott
Workplace sexual harassment is a prominent barrier to career success and satisfaction and to a healthy work environment. Sadly, reports of sexual harassment and violence against remote workers have skyrocketed since the pandemic began in March 2020. Whether the switch to remote working during the pandemic caused this increase or not, one thing is certain: sexual harassment knows no boundaries and can happen to any worker, any time, even in their own home. Current Canadian legislation fails to address many of the complexities of online sexual harassment. The result is that survivors of technology-based sexual violence are often not fully protected or compensated.
Online sexual harassment can take many forms including inappropriate text messages, images, threats, appropriation of one’s likeness, and blackmailing. Experiencing sexual harassment can threaten a person’s dignity, feelings, self-respect, and in extreme cases, can lead someone to suicide. Online workplaces provide means for individual communication, blur the hours where responses can be expected, and provide minimal supervision throughout the workday thereby creating many opportunities for sexual harassment and cyberbullying. Most workplaces have no policies in place against virtual sexual harassment or cyberbullying.
What is the state of the law?
Both Canada and Ontario have specific provisions in their respective human rights codes that make sexual harassment illegal. There are no specific laws against online sexual harassment in the workplace in Ontario or for federal workers. The Human Rights Tribunal of Ontario has, however, held that delivering unwelcome messages or other media at work using technology can amount to sexual harassment. In more extreme cases of repeated unwelcome communications or threatening conduct, sexual harassment can be prosecuted under section 264(2) of the Criminal Code however this provision is also silent about online sexual harassment.
Shortcomings of the Canadian and Ontarian laws
The government of Nova Scotia recognized the dangers of online sexual harassment when it passed the Intimate Images and Cyber-Protection Act in 2017 (IICPA) which creates specific civil actions and remedies for survivors of unauthorized intimate image distribution and cyber-bullying. There is no comparable legislation in Ontario or on the federal level.
Survivors of online sexual harassment at work in Ontario have access to general damages before human rights tribunals and courts but would have difficulty getting a tribunal to order specific remedies related to the virtual nature of the harassment. Legislators must recognize that in a post-pandemic world, remote working will continue and set their mind to creating legislation that provides adequate protection for its victims. This could include, for example, court orders for offenders to pay for survivor mental or health support, mandatory workplace inspections, and mandatory workplace risk re-assessments.
Have you been sexually harassed online?
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*David Westcott is a law student at the University of Ottawa. He volunteers with the Legal Clinic’s Sexual Harassment in the Workplace project, for which won a Chief Justice Richard Wagner Award. He is also the Executive Editor for Volume 53 of the Ottawa Law Review.