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2015 Summit on Sexual Violence and Harassment

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November 19 and 20, 2015
Speaking Notes: Chief Commissioner Renu Mandhane
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Introduction

Thank you for inviting me here to add a human rights lens to the issues of sexual harassment and sexual violence.

This is an issue very close to my heart. 

As a young girl, I was well-aware of the fear and shame that many women in the South Asian community faced when talking about gender-based violence.

Until recently, it was taboo to speak out about these issues and, even now, many women are ostracized from their families and communities if they seek accountability for violence they experience.

It was these early impressions that led me to get involved in the violence against women movement. 

First, as a law student volunteering at METRAC to provide women with information on their legal rights,

Then, on the board of a local women’s shelter,

Later, as a lawyer representing complainants whose private records were sought in sexual assault proceedings;

And, most recently, drawing attention in international forums to sexual harassment and violence that girls around the world experience while at school.

It was this movement that first nurtured my interest in human rights, and many of the women in this room mentored me and supported me to forge a career focused on ending discrimination against vulnerable people and groups.

That is why I am so honoured to speak with you today, and also thankful that the Premier has exercised bold leadership in launching the “It’s Never Okay” initiative.

OHRC has long recognized problem

The Ontario Human Rights Commission has long recognized the serious negative impact of sexual and gender-based harassment and sexual violence on society as a whole.

It is not an exaggeration to say that experiences of sexual harassment and violence can completely alter the course of one’s life.

For example, today we commemorate the Trans Day of Remembrance, and mourn the many lives lost due to violence, often because someone thought their look or actions were outside what is “normal.”

Ontario’s human rights legislation, the Ontario Human Rights Code, specifically prohibits sexual harassment, which is often a pre-cursor to sexual violence. The Code is an important tool because it has primacy – which means it takes precedence – over other provincial legislation.

In fact, the United Nations’ Declaration on the Elimination of Violence against Women

At the Human Rights Commission, our goal is to use our mandate and resources to stop sexual harassment, and to make sure that it doesn’t escalate.

Ontario’s human rights system

Before going into some detail about how we do this, I’ll give you a quick overview of Ontario’s human rights system, which has three parts that work together to promote and enforce Ontario’s Human Rights Code.

The Human Rights Tribunal of Ontario is an administrative body that handles individual complaints and decides if discrimination has happened.

The Human Rights Legal Support Centre is a free resource that helps people who need legal advice and representation.

And then there’s the Ontario Human Rights Commission – or the OHRC.

The OHRC is Ontario’s human rights watchdog and focuses on preventing discrimination before it takes root, and eliminating it when it does happen.

For example,

  • We educate, empower and mobilize individuals and communities to advance human rights
  • We conduct public interest inquiries
  • We work with communities and organizations to reduce and resolve tension and conflict
  • We take legal action to clarify the law or enforce compliance with the Code
  • We research, monitor and report on human the state of human rights in Ontario
  • And we develop and publicize cutting edge human rights policies.

The human rights system can help

Many people are not aware that the human rights system offers options that can help people harmed by sexual harassment and violence.

There are some important differences between the human rights system and other legal mechanisms that can benefit survivors of sexual harassment and violence.

For example, there are no filing fees to bring a case to the Human Rights Tribunal of Ontario.

The Human Rights Legal Support Centre can give free legal advice, and can legally represent people who believe their human rights have been violated.

As an administrative tribunal, the Human Rights Tribunal of Ontario has specialized expertise and is designed to deal with cases more quickly than the courts.

Under the Code, the person bringing a sexual harassment claim has to prove the allegation on a “balance of probabilities” instead of the criminal standard of “beyond a reasonable doubt,” which can benefit complainants where credibility is a live issue.

A human rights tribunal will look at patterns of conduct, which could involve different people, and will consider what is called “similar fact evidence.” They can also draw ‘inferences’ from facts presented.

Finally, the Code imposes responsibilities on individuals and organizations to address and prevent sexual harassment.

This means that the Tribunal can hold organizations responsible and order remedies against them when they fail to do this.

Remedies can include making payments to the person who complained.

There can also be “public interest remedies” such as having the organization take human rights training, write a sexual harassment policy, or end practices that cause discrimination.

This ensures that an individual case has broader significance and impact within the organization and sends an important signal to potential respondents across the province.

General – OHRC policies

I spoke earlier about how the OHRC creates policies, which clarify the law and offer our best advice on meeting human rights obligations in Ontario.

One example is our Policy on preventing sexual and gender-based harassment.

OHRC policies help set standards for compliance with the Code.

Our policies reflect current human rights case law, international standards, and social science research.

They are developed through public consultation, so they include real-life examples and issues the community has raised.

The courts and tribunals have given great deference to our policies, and under the Code, the human rights tribunal is required to consider our sexual harassment policy if the complainant asks them to.

Our policies teach people what the law says about their human rights issue, and the OHRC’s interpretation of what the Code means in practical terms.

Because of this, they can help organizations advocate for change.

Specifics – the OHRC policy

I’ll now give you some of the key points of our Policy on preventing sexual and gender-based harassment.

First and foremost, it definitively states that sexual harassment is against the law.

Sexual harassment is a form of discrimination based on sex, and is prohibited in employment, services like education, housing, and other “social areas” protected by the Code.

The policy recognizes that a broader culture of sexism plays a significant role in the social processes that give rise to and entrench discrimination based on sex.

Employers, housing providers and service providers have a proactive legal duty to maintain environments that are not hostile or poisoned, and are free of discrimination and harassment, whether or not someone formally complains.

Organizations that do not take steps to prevent sexual harassment can face major costs in decreased productivity, low morale, increased absenteeism, health care costs, and potential legal expenses…

Not to mention the damage to their reputation or brand. The CBC and the RCMP would know all about that.

The Human Rights Code defines harassment as “engaging in a course of vexatious comment or conduct” that is known or ought to be known to be unwelcome.

Historically, decision-makers have required that more than one event take place for there to be a violation of the Code.

However, more recent case law has established that one incident could be significant or substantial enough on its own to be considered sexual harassment.

For example, the Ontario Human Rights Tribunal found that an incident where a male employee [quote unquote] “flicked the nipple” of a female employee was enough to meet the legal definition of sexual harassment.

Sexual harassment takes many forms.

In can be subtle, and include things like sexual jokes and innuendo, or unwanted and repetitive gestures of affection.

We heard about such affection in recent allegations against the head of the Canadian Olympic Committee.

In its more extreme forms, as we all know, sexual harassment can invade a person’s life and escalate to stalking and violence prohibited under the Criminal Code.

It’s also important to note that harassment and discrimination based on sex may not always be sexual in nature.

Behaviour that is not explicitly sexual may still amount to harassment because of sex.

For example, spreading degrading sexual rumours or gossip about a female employee in an attempt to undermine her credibility and professionalism has been found to be sexual harassment.

The policy recognizes that in many cases, sexual harassment is about an abuse of power rather than sexuality.

As well, a person may be especially vulnerable to sexual harassment when they are identified by more than one Code-related personal characteristic – or ground.

Tribunals and courts have increasingly used what is called an “intersectional” approach in the human rights cases they hear.

For example, racialized women, lesbian and trans women, young women, women with disabilities and others may be especially vulnerable to sexual harassment.

In one case, a woman working at a coffee shop was asked out on a date by her employer on her second day at work.

She declined the invitation.

When her employer learned that she was a lesbian, his interest in her intensified and he tried to persuade her to have a heterosexual relationship with him.

A human rights tribunal found that his conduct amounted to harassment because of sexual orientation as well as sexual harassment.

Discrimination based on sex is also sometimes intertwined with racism.

Racial stereotypes about the sexuality of women have played a part in several sexual harassment claims.

Women may be targeted because of beliefs based on racialized characteristics – for example, that they are more sexually available, more likely to be submissive to male authority, or more vulnerable.

Many of these misconceptions are applied to Indigenous women.

In a recent letter to Premier Wynne, former Interim Chief Commissioner Ruth Goba wrote,

“We are still struggling to correct the characterization of the murders and disappearances of Indigenous women and girls as a sad social phenomenon, [or] as the women's own fault because of their ‘risky lifestyles.’”

Legal decision-makers are increasingly taking this context into consideration when determining the amount of damages and appropriate public interest remedies.

Sexual harassment is also happening at alarming rates through online technology.

Email, blogs, Facebook and twitter, chat rooms, apps like Tinder and SnapChat, and private texts are all possible domains for sexual harassment.

Technology has created an unprecedented potential for cyber-harassment.

In fact, the anonymity of the online world may make it the vehicle of choice for harassers, especially where young women are concerned.

Organizations should be aware of the potential discriminatory effects, and that they can be held liable when online technology is used on their premises for improper purposes.

For example, in 2011, the B.C. Human Rights Tribunal awarded a woman $30,000 after she was forced out of her job because of unwanted sexually-charged text messages from her boss.

Inappropriate sexual behaviour often develops over time, and if left unchallenged, the outcome can be devastating.

I’m sure most of you are familiar with the tragic deaths of Lori Dupont, Gillian Hadley and Theresa Vince.

In each of these cases, there were several workplace incidents, and sexual harassment was allowed to escalate to the point of murder.

In human rights law, when we talk about sexual harassment in the workplace, we define “the workplace” broadly.

It includes events that happen outside of normal business hours or off business premises, but are linked to the workplace.

An employer may also be held liable for incidents that take place during business trips, company parties or other company-related functions.

The ultimate responsibility for maintaining an environment free from sexual harassment rests with employers, housing providers, educators and other organizations covered by the Code.

Organizations must:

  • Take proactive steps to prevent sexual harassment, including developing and implementing their own anti-sexual harassment policies
  • Maintain poison-free environments
  • And respond immediately when they learn of sexual harassment.

Our policy can guide them to do these things.

It can also teach people how to define and identify sexual and gender-based harassment, and what the legal rights and options are for someone who has experienced it.

We have many other resources on preventing sexual harassment on our website.

We provide plain language brochures and fact sheets on a variety of related topics, geared to employers, service providers, and even to students.

Concluding comments

As you have seen over the past two days, there are many different approaches to consider for eliminating sexual harassment and violence.

And you all know, first-hand, that there are no easy, one-off solutions.

The way forward is to combine our energy and our expertise to take a collective approach to a complex problem. 

And, of course, this is easier when the government commits its resources and its leadership to the issue.

The Ontario Human Rights Commission is committed to being part of that discussion, and to giving you the tools you need to make human rights enforcement part of the solution.

Thank you for having me here today.