The Dye & Durham community contains many of the most forward thinking legal professionals in the business. As a group they have many interesting thoughts that are worth sharing here on the Dye & Durham website for the benefit of the wider community.
The following is written by Lawyer Erin Brandt at Kent Employment Law and originally appears on their blog. It is reposted here with their permission.
In many circumstances, hugging represents an act of affection or comfort. An unexpected or unwanted hug, however, is another thing entirely – it violates personal space and boundaries and can cause mental and emotional distress.
And, from a legal perspective, if it happens in the workplace, it can amount to sexual harassment.
How does the law protect workers from unwanted touching on the job? Two recent human rights decisions out of BC and Ontario offer some guidance.
But first, some background on workplace sexual harassment, from the Supreme Court of Canada…
In Janzen v Platy Enterprises Ltd., Canada’s highest court explained that:
sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment… By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
Within this context, the BC Human Rights Tribunal was asked to decide in Young v Petres whether the following behaviour by an employer towards his employees constituted sexual harassment:
- The employer, the owner of a Minimelts cart in Victoria, hugged his two young female employees (aged 19 and 13) several times a week. The hugs lasted up to 10 seconds, and sometimes involved “rocking from side to side”.
- One of these employees told the employer that both she and the other employee (her sister) were uncomfortable with the hugs.
- When one of the employees declined to hug the employer, “he would stand with his arms extended until she gave in, which she did because he was her boss”.
At the human rights hearing, one of the employees testified that the hugs “encroached on her personal space and her right to choose whether or not she wanted to be hugged.”
The Tribunal concluded that the employer’s hugging fell within the Janzen definition of sexual harassment because it was sexual in nature, unwelcome, and made the workplace tense, and awarded the employees a total of $10,000 for their injury to dignity, feelings, and self-respect.
The Ontario Human Rights Tribunal also recently condemned workplace hugging, although they did not consider the Janzen test for sexual harassment in doing so. In Panucci v. Seller’s Choice Stockdale Realty Ltd., the employee, a salesperson at a real estate brokerage, filed a human rights complaint against her employer and her supervisor, who she alleged commented on her appearance and made unwanted physical contact with her in the form of touching, hugging, and attempts to kiss her. While there were conflicts in the evidence about the extent of the physical contact, the Tribunal did conclude that there was at least one instance of unwelcome hugging and one additional instance of unwanted touching (when the supervisor touched the employee’s shoulder).
The Tribunal concluded that this contact was “unsolicited, unwelcome physical contact”, and therefore harassment, and went on to state:
…the objective seriousness of the harassing conduct that I have found to have occurred is significant. Unwelcome comments about one’s appearance or feeling that one has to submit to unwanted physical contact in the workplace are, by any objective standard, demoralizing in their impact and would leave most people feeling devalued and under stress…In this case, given that the source of the unwanted comments and touching was a person the applicant relied upon for advice and who was in a mentoring relationship, the conduct is even more serious, when viewed objectively.
The employee was awarded $15,000 for injury to her dignity, feelings, and self-respect.
These “hugging cases” offer key reminders for both employer and employee:
- Employers: Whatever your cultural beliefs or values when it comes to physical contact, it’s important to leave these at the door when it comes to the workplace. While hugging or touching may mean one thing to you, you shouldn’t assume that your staff feel the same way.
- Employees: If a co-worker or supervisor’s physical or verbal behaviour makes you uncomfortable, trust your instincts and speak up about it. Reach out to a trusted colleague or someone in your human resources department to express your concerns. You are entitled to a workplace free from discrimination and harassment.