© 1992 Karen Selick
 Sexual Harassment--The Witch Hunt
An edited version of this article first appeared in the June, 1992 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Sexual Harassment--The Witch Hunt

I've just finished reading the Law Society of Upper Canada's guidelines on sexual harassment policy.  It includes a summary of the recent statutory and case law on the subject.  I feel as though I've entered The Twilight Zone.  This stuff is scary.

The excerpt which best encapsulates the horror of the sexual harassment witch hunt is a subtitle, ominously printed in bold, capital letters and underlined: "SEXUAL HARASSMENT ENCOMPASSES MORE THAN YOU THINK."

Hmmm.  If sexual harassment encompasses more than most of us think, who are the people who know exactly what it encompasses?  And if only a handful of unidentified cognoscenti know what it encompasses, what prompted our legislators to outlaw it under various human rights laws?

The guidelines set out 13 different types of sexually harassing behaviour which lawyers are supposed to discourage in our offices.  Of course, it cautions, this is by no means an exhaustive list. 

Guess what the last item on the list is.  Are you ready?  It's sexual assault.  No kidding.  We are supposed to discourage our lawyers and staff from sexually assaulting each other.  God, am I ever glad they told me!

I checked my Criminal Code to see when Parliament had repealed sexual assault as a criminal offence.  By gosh, they hadn't.  Nor had they repealed extortion, or intimidation.  So the worst of the sexually harassing behaviour that we're supposed to be on guard against is behaviour that could already have landed a perpetrator in jail, even without any amendments to the Human Rights Code. 

And of course sexual assault, or any assault, and battery are all torts which entitled a victim to redress, centuries before the Human Rights Code was thought of.  Remember first-year Torts class?  Any intentional offensive contact or the imminent threat of it constitutes a battery or assault.

So what does the Human Rights Code prohibition against sexually harassing behaviour add to civilization?  An example in the Law Society guideline says, "Suppose that a person, with no intention of offending, makes a sexist joke which is neither gross nor vulgar but which nevertheless causes embarrassment to someone.  This may constitute sexual harassment...."

In other words, it is now illegal to cause someone embarrassment in the workplace.  It is illegal to be insensitive. It is illegal to be impolite. 

What other unspeakable acts will we be protected from?  Well, leering, for one.  Yes, Orwell's worst nightmares have come true.  Our rulers are now attempting to control by law the expressions that people may have on their faces. 

What else?  The display of sexually offensive material is also forbidden.  The cover of Maclean's magazine of March 9, 1992, in order to publicize its feature article on breast implants, showed a young woman, nude from the waist up, with arms crossed over her clearly ample breasts.  What if someone on my staff found this embarrassing?  Should I have banished Maclean's from my reception area?  Should I have torn off the cover? 

What ever happened to that ancient legal maxim, de minimis non curat lex?  Wouldn't it be better if those who are  embarrassed by non-gross, non-vulgar sexist jokes, leers or pictures simply took an assertiveness course and polished up a few incisive put-downs and withering glares of their own? 

Why do some people--mostly women, it seems--want to create a false picture of reality for themselves?  An insensitive, macho boor is not going to change just because a policy of censorship is being enforced.  He will simply become a silent, skulking, insensitive macho boor.  Personally, I prefer to know as soon as possible when I'm dealing with one of these jerks.  I think they should be permitted to identify themselves so that women can quickly sort them out from the nice guys.

The most vicious part of the sexual harassment witch hunt is the case law holding employers vicariously liable for acts of sexual harassment among their employees, if they fail to take steps to prevent or rectify it.  But what steps are enough?  Does an employer have to expose himself to a wrongful dismissal lawsuit by the alleged harasser in order to avert a sexual harassment lawsuit by the alleged victim?

One way for employers to protect themselves would be to screen out potential offenders before they are hired.  This, too, is forbidden.  Sexual harassment is an offence, and employers are not allowed to question job applicants about their record of offences.  Hiring people becomes a game of Russian roulette, but don't dare try to empty out the chambers.

The guidelines suggest that there is a peripheral field of behaviour which doesn't quite come up to the standards of sexual harassment (low as they are), but could be called "gender-based harassment."  This behaviour might include "patronising comments addressed to a person of the opposite sex, drawing attention to that person's sex and having the effect of undermining the person's role in a professional or business environment."

What could be more patronising than this entire policy?  How better to undermine the professional image of working women than to make our male colleagues believe that we need or want this fascist nonsense to protect us from them?



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