An Unwelcome Burden: Sexual Harassment, Consent and Legal Complaints
sexual harassment, consent, human rights law
The legal definition of sexual harassment was set down thirty years ago in the Supreme Court of Canada decision of Janzen v Platy Enterprises as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of the harassment.” Remarkably little has changed in the interpretation and application of these elements since Janzen was decided. However, both legal and social norms concerning sexual misconduct and consent have substantially developed in that time. This article unpacks the problematic consequences flowing from the treatment of consent in sexual harassment complaints under human rights law. It illustrates how the “unwelcome” element of the definition of sexual harassment invites scrutiny of the complainant’s own behaviour, facilitates the introduction of gender-based myths and stereotypes, and may operate to require her to effectively establish a lack of consent. The article argues for a shift in the legal principles governing sexual harassment complaints and draws support from criminal law and tort law, each of which has shifted towards an affirmative consent standard due to similar problems and concerns regarding reliance on gender-based myths and stereotypes, and the impropriety of requiring a complainant to prove a lack of consent.
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"An Unwelcome Burden: Sexual Harassment, Consent and Legal Complaints."
Osgoode Hall Law Journal