Ask A Lawyer: How Do You Prove Sexual Harassment At Work?

Despite strict workplace equality laws, three in ten Canadians say they have faced sexual harassment at work. Perhaps unsurprisingly, women are four times more likely to suffer this problem than men, but it's seldom easy for anyone to prove one of these allegations. If you feel that somebody is sexually harassing you at work and you want to take action, find out what sort of evidence your lawyer may ask for.

Sexual harassment laws in Canada

Under Canadian law, it's up to the claimant to prove an allegation of sexual harassment. That aside, to prove sexual harassment you must present evidence that can convince a court that your claim is true 'on balance of probabilities'.

This requirement is different to the evidence a court would need to see in a criminal case. In this instance, a jury would need to see evidence that proves the case 'beyond reasonable doubt', so while it isn't easy to convince a tribunal that you are right, you won't always need unequivocal evidence to support your case.

Defining sexual harassment

The Supreme Court of Canada defines this workplace problem 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."

This definition aside, one person's interpretation of this problem may differ to someone else's. For example, you could argue that patting somebody on the bottom is not sexual harassment unless you can show there was a detrimental effect. As such, sexual harassment evidence is often highly subjective, so you'll need a skilled lawyer's help to substantiate your claim.

Types of evidence you may need

Lawyers will look for certain types of evidence that have proven useful in other sexual harassment cases. If your lawyer can show precedent in a Canadian court, they can often strengthen your case.

For example, your lawyer will want to know about any distinctive patterns of behaviour at work. For example, if a male manager abuses his position, he will often do the same thing with all his female staff members. As such, it's often useful to find out about other employees with similar experiences, although it's often difficult to learn about other people when you are new to a role.

Any sort of special behaviour can also help substantiate your case. For example, if a manager only offers to mentor employees of a certain sex outside working hours, a court may agree that his or her motives are not entirely professional. This type of evidence is sometimes easier to collate because you can observe how a manager behaves without knowing the people they mistreat.

Managers who sexually harass employees can also abuse their power. For example, some managers may become over-friendly with certain interns or probationary employees because they are less likely to complain. Again, it's often useful to observe how the accused behaves in certain situations.

Details you cannot ignore

When collating evidence of a sexual harassment claim, certain details are particularly useful in court. Information your lawyer will need includes:

  • The dates and times of each incident
  • A clear chronology of events, showing how one situation links to another (where relevant)
  • Names of any potential witnesses
  • Accurate details of words and phrases used

What's more, you should make sure your evidence is completely objective.  Don't describe something in a way that is open to interpretation. For example, you could say: 'He placed his grubby hands on my thigh in a creepy fashion and leered at me like a monkey'.

You must only stick to the facts. Opinion-free evidence supports a compelling case, so in the example above you should actually say: 'He placed his left hand on my thigh, a few inches above my knee and looked directly in my eyes'.

When presenting the evidence, your lawyer will then present to the court how these situations affected you. You can then describe how the conduct made you feel, but you should keep your feelings out of your statement and evidence.

Sexual harassment at work isn't always easy to prove, but a trained lawyer can help you put together a strong case. Always follow their advice, as it's up to you (the claimant) to prove the allegation.

At a firm like Banks, Gubbins and Andrews Criminal Law lawyers will be able to answer specific questions relating to other areas of the law.