This is not legal advice! What you are getting here is just general legal information. It is not a substitute for advice from an actual lawyer about your specific situation. If you need legal advice, we urge you to find a lawyer who can help you.
The first thing you need to know is that it’s incredibly common for people who complain about being sexually harassed to be punished for it, both by their employer and their co-workers. If you suspect you’re being punished because you complained, you’re almost certainly correct.
Let’s talk about why punishment happens, and what it looks like.
When you complain about being sexually harassed, you might expect that people would feel sorry for you and want to help you. But that’s not usually what happens. What’s more common, researchers say, is that you end up getting blamed.
This happens because people are misunderstanding the problem. The real problem, of course, is the harassment, which means the person to blame is the harasser. But when a complaint about harassment is made, people start to behave as though the problem is actually the complaint. Which leads them to blame you.
Why does that happen?
- Supervisors are often uncomfortable handling sexual harassment complaints, because sexual harassment complaints are legally sensitive and…well, awkward. Lots of times, the person you tell will feel burdened by your report, because it means more work for them, and it’s work that’s unpleasant and difficult.
- Sometimes your employer is afraid of the person who harassed you, or is friendly with them, or thinks that person is more valuable to the workplace than you are. If that’s the case, your employer may be mad at you for complaining.
- People (especially men) will often sympathize with the harasser, and worry about the harasser’s reputation or ability to make a living. Those people may think it’s reckless or mean for you to complain.
- The harasser will often argue that you misunderstood them, or are making a big deal out of nothing. If there are no witnesses (and there usually aren’t), it becomes a “he said, she said” situation. It’s common for people at work to pick sides and argue with each other about what happened. This can be really disruptive, and you may get blamed for that.
- People may decide you’re a drama queen, a liar, or have a chip on your shoulder. This is especially likely if you’re racialized, Indigenous, 2SLGBTQIA+, young, or new to your workplace.
- It’s pretty common for harassment complaints to result in everybody needing to take sexual harassment training. A lot of people think that’s a waste of time, and will blame you for having to do it.
- The longer your complaint process drags on (even if its slowness has nothing to do with you), the likelier it is that people will decide you are impossible to satisfy.
- If you are suffering, people may feel guilty about not helping you, and that may make them dislike you.
So what does punishment look like in practice?
Even if you don’t know what is being said about you, even if you don’t know who is saying what, you can feel what is being said in how people react to you, speak to you, address you, in sideways glances, how you are dropped, the invitations you stop receiving, how you are dropped from texts, how they stop referring to your work, how they turn away when you turn up.Sara Ahmed, Complaint!
It takes many forms. Sometimes it’s really subtle, and sometimes it’s not. Here are some common ways that people get punished:
- You get scheduled to work less often, or you get less-good shifts.
- People stop doing you favours and treating you well.
- You start getting frozen out socially by your co-workers.
- People start withholding information from you that you need to do your job.
- You start getting told you’re hard to work with.
- You get a bad performance evaluation.
- You get formally reprimanded or fired.
What to do if you’re being punished
It depends on who’s punishing you.
If you’re being punished by your boss or someone in a position of authority at your workplace, that might legally be considered a reprisal.
A reprisal is a legal term used to describe an action, or threat, that’s meant to punish someone who is standing up for their rights. In the case of sexual harassment, it means that you have complained about the harassment and are being punished because of your complaint.
If you answer yes to any of these questions, you may be experiencing reprisals:
- Have your job duties changed?
- Were your performance reviews mostly positive before the harassment and now they’re mostly negative?
- Has your rate of pay or hours of work decreased?
- Have you been demoted?
- Are you being disciplined more than before you complained?
- Does your manager or supervisor behave differently toward you?
- Are you being denied opportunities, like a promotion or training?
- Has a person in authority made comments that made you feel they’re upset you reported?
- Have you been disciplined or fired because of your complaint?
In Canada, reprisals are illegal. That’s why it’s important to understand whether you’re experiencing a reprisal or just an ordinary punishment. If your employer fires you because you’re always late, that’s not a reprisal and the law isn’t going to protect you. If an employer fires you because you complained about sexual harassment, that’s a reprisal. It’s illegal, and the law is on your side.
It’s not usually hard to prove that the reprisals happened. What’s hard is to prove that they happened because you complained. If you’re considering making a case that you’re experiencing reprisals, it’s important to gather as much evidence and documentation as you can, linking the punishment to your complaint.
Human rights bodies take cases based on reprisals. So do labour boards and civil courts. If you are unionized and you have started a grievance, the reprisal can be added to the grievance and dealt with at the same time.
If you start experiencing reprisals after you’ve started a case, or even after the case has already been decided, that doesn’t necessarily mean it’s too late to include them in your case. Talk with your lawyer, union rep, or union staff right away. They can help you add evidence about the reprisals so that everything gets handled together.
If you haven’t yet started a sexual harassment case or if you told your employer about the harassment and then started being punished, the human rights body is a good place to start.
What else can you do?
- If you belong to a union, you can ask it to bring a grievance against your employer.
- If you’re not a union member, you can start a civil action against your employer saying you have experienced mental suffering, wrongful dismissal, or constructive dismissal. (Union members can’t start civil suits until after they have gone through the grievance and arbitration process.)
- If you are a federally regulated worker the Canada Labour Code applies to your workplaces and reprisal complaints go to the Canadian Industrial Relations Board.
- Otherwise, where and how you can appeal reprisals depends on where you live.
Most of these avenues are slow and expensive, and there is no guarantee of success.
Punishments by your co-workers
If you’re being punished by your co-workers, that might or might not be legally considered a reprisal. If a boss or another person with authority over you has some control over the situation, it’s a reprisal. If they don’t, it isn’t.
That doesn’t mean punishment by your co-workers isn’t damaging. It definitely can be. It just means it’s not legally considered a reprisal, which means your employer can’t be held accountable for it.
Here are some common ways in which co-workers punish people:
- They leave you out of social gatherings.
- They refuse to talk to you.
- They talk about you negatively to other people.
- They drop you from email or text exchanges.
- They don’t help you with work tasks, or they set you up to fail at them.
- They don’t help you if you’re in an unsafe situation.
- They play abusive pranks on you or tell offensive “jokes” at your expense.
- They use slurs to describe you.
- They threaten or bully you, verbally or physically.
- They damage your personal property.
If it’s bad enough, then your workplace might be what’s called “toxic.” That’s a legal term.
There is no single legal definition of a toxic work environment. But generally it’s considered to be a workplace where there is so much harassment and abuse that a reasonable person would find it intolerable to work there.
It can be hard to tell if your workplace is toxic. There are lots of bad workplaces, but not all of them are toxic.
It’s not necessarily a toxic workplace if:
- People don’t like you.
- People are rude to you.
- People ignore you.
- People play a lot of pranks and tell crass jokes.
- People make it hard for you to do your job.
But it may be a toxic workplace, especially if:
- You are being harassed all the time.
- You feel unsafe or threatened.
- Any reasonable person would find what’s happening to you intolerable.
- Your employer knows about it and doesn’t do anything to stop it.
There’s an important distinction between a workplace that’s “toxic” versus one that’s “poisoned.” In a toxic workplace, you personally are being treated badly. In a poisoned workplace, sexual harassment is not just hurting one or two people but is creating a poisoned environment by sexualizing the workplace for everyone. Everyone is being affected. If you’re trying to prove that you’re experiencing reprisals because you complained about being sexually harassed, you can show evidence that it has become toxic for you or you can also show how it has poisoned the workplace for everyone. Or both.
If this all sounds complicated, it is! That’s why we advise you to get a lawyer if you can.
How and where to get help
Your employer has a legal obligation to provide you with a harassment-free environment. If your workplace is getting toxic to the point where it’s intolerable, there are places you can go for help.
- First, you can report it to your employer or union, and remind them of their obligations. If they don’t address the problem, that may violate health and safety laws.
- If you belong to a union, you can ask it to bring a grievance against your employer.
- You can file a complaint with the Human Rights Tribunal, saying that your employer failed to protect you against harassment, allowing your human rights to be violated. If you have already started a human rights complaint for compensation, you can add the impact of the reprisals to your complaint.
- If you’re not a union member, you can start a civil action against your employer saying you have experienced constructive dismissal, because your employer’s failure to protect you against harassment amounts to a fundamental change to your employment agreement. If you are considering this, consult a lawyer first.