" There is no kind of harassment that a man may inflict
on a woman with impunity in civilized societies "
Denis Diderot (1713-84), French philosopher
Author Pearly-Robertson, Pant, Hill & McDougall
The essence of the managerial responsibility in cases of sexual
harrassment is to create an understanding amongst members of an organization that if one
engages in certain behaviour, that employee will be subjected to prosecution and penalty.
This issue clearly requires management to take preventive or disciplinary action in order
to avoid liability. .
The Ontario Civilian Commission on Police Services ["Commission"] recently
released a decision in the matter of Cst. Alan Drennan v. Hamilton-Wentworth Regional
Police Services Board ["Drennan"]. The officer was charged with misconduct for
having allegedly used profane, abusive or insulting language related to a person's sex
toward a female colleague, Constable H. The officer appealed his conviction and sentence
to the Commission. On appeal, the conviction was confirmed and the sentence was reduced.
The Commission's decision is timely. The Code of Offences under the Police Services Act
has been amended within the last few years to include two new discipline offences relating
to human rights issues under the classification of Discreditable Conduct.
The Drennan decision involved a charge of Discreditable Conduct under section 1(a)(i.2) of
the Code of Offences. The interpretation of this offence was held to involve the
application of human rights principles both in terms of the conduct involved and
Definition of Sexual Harassment
The term "harassment" is specifically defined in section 10(1) of the Ontario
Human Rights Code to mean "engaging in a course of vexatious comment or conduct that
is known or ought reasonable to be known to be unwelcome". By specifically
incorporating the term "course of vexatious comment or conduct", the clear
inference to be drawn is that harassment will require more than a single event. A degree
of repetition is required to constitute harassment under the Human Rights Code.
Section 1(a)(i.2) of the Code avoids the restrictive definition of "harassment"
provided in the Human Rights Code and applies to single event circumstances. However,
section 1(a)(i.2) of the Code is restrictive in that it applies to comment and not
It was noted by the Commission that joking behaviour may constitute sexual harassment if
it creates, as a condition of employment, a work environment that undermines the
employee's sexual dignity as a man or woman. In this regard, the Commission had regard to
the Ontario Human Rights Commission Policy Statement on Sexual Harassment and
Inappropriate Gender-Related Comment and Conduct. This Policy Statement confirmed that a
single event incident may still constitute a breach of the Human Rights Code in that a
poisoned environment is created. The analysis then focuses on the impact of the comments
or conduct on the individual rather than the number of times the behaviour occurred.
The basis of the charge in Drennan was an incident which occurred on July 25, 1993 during
morning parade. At that time, Constable Drennan was sitting beside Constable H. and
addressed her as 'Deep throat H". The evidence was that several other officers were
present to hear the comment, including the Shift Sergeant. The comment was understood by
Constable H. as disgusting and vulgar and it was viewed as inappropriate by the Shift
Sergeant who overheard the comment.
It was the evidence of Constable H. before the Hearing Officer, then Deputy Chief
Christine Silverberg, that the comment negatively affected her ability to communicate
honestly with Cst. Drennan and to have confidence that she would receive backup if needed;
it created job stress and physical symptoms of feeling sick to her stomach and headaches;
and as time went on she started to feel isolated, segregated and discriminated against.
The Commission found that this Policy Statement provided useful and important guidance in
interpreting section 1(a)(i.2) of the Code of Offences. Where the alleged offence under
this section involves a single use of "profane, abusive or insulting language"
as in the present case, the determination of misconduct can be made by applying a
"poisoned environment" analysis. A "poisoned environment" was held to
have existed in Drennan.
Once misconduct was established, the Human Rights Code could once again provides guidance
in sentencing factors.
The Policy Statement calls for the adoption of the standards of "full substantive
equality" in assessing the appropriate penalty. The substantive model of equality
looks to the effect or result of the differential treatment rather than treating everyone
in the same manner. It recognizes that comments can have a greater impact on a female
recipient than if the recipient were a male because of the unequal position of women and
men in society and the workplace. More weight is given to the impact on the victim rather
than the intent of the perpetrator.
Section 39(2)(e) of the Human Rights Code establishes liability of management for its
failure to take punitive or preventive action where conduct in contravention to the Code
exists. The Commission notes in Drennan that this liability clearly requires management to
take preventive or disciplinary action in order to avoid liability. The Commission went on
to state that section 1(a)(i.2) of the Code of Offences provides direction as to the
manner in which this management responsibility is to be discharged in police services once
misconduct is found to have been committed.
The Commission found that at the time of the incident a culture of inappropriate
conversation existed within the Hamilton-Wentworth Regional Police Service and that such
behaviour was routinely not disciplined by the management of the Service. The Service had
not adopted a policy on sexual harassment nor taken other significant steps to confront
this problem or bring it to the attention of the members of the Service.
The essence of the managerial responsibility is to create an understanding amongst members
of a police service that if one engages in certain behaviour, that employee will be
subjected to prosecution and penalty. In Drennan, it was found that administering a
significant penalty under the auspices of general deterrence is part of developing a new
At the end of its decision, the Commission made the following recommendations to police
services throughout the province:
1. Review the adequacy of internal procedures in this area;
2. Advise and educate all members of the police service regarding these procedures
3. Impress upon supervisory and managerial personnel the legal responsibility for taking
4. Train such personnel to enforce the procedure and the law in an effective and prompt
Other: From correspondence received January 24, 2007
Prevention Training Regulations Plus…….new regulations not just for
In the last year businesses in California have been informed of AB 1825, the
Sexual Harassment Prevention and Training requirement. There has been
intense discussion and interpretation of the law. As 2007 starts, let’s look
at the most recent interpretation of the regulations for any businesses with
employees in California.
Remember, California often leads the way, and sets the standard in employee
law and protection, so even though your business is not covered by this
regulation, Sexual Harassment and Discrimination Education and Prevention
Training is just good business. The average cost of a sexual harassment
lawsuit is $200,000. Understanding the laws and requirements is critical for
all employees, regardless of location.
Let’s look at a quick overview and then dig into some of the details.
Who needs to be trained?
All businesses with 50 or more employees must provide supervisory training.
How does an employer count the number of employees?
Full time and part time employees as well as independent contractors and
seasonal workers may be counted. Temp employees and those hired through a
temp agency are also counted. If you have employees who work primarily in
offices outside the state but do business in California, they may be
counted. When in doubt, over-train.
Remember in a court of law, you will have to show that you have taken all
necessary and reasonable steps to stop sexual harassment.
What are the compliance deadlines?
The deadline for covered employers to provide training was January 1, 2006.
A covered employer has 6 months to comply. A newly hired or promoted
employee must receive training within 6 months.
What types of training may be used?
The important word is interactive. Classroom style training, webinars,
e-learning and other equally interactive training may be acceptable. Here is
where the devil is in the details. Classroom training must be conducted by
an instructor who is considered a sexual harassment expert, and the training
must be conducted in a setting removed from the supervisor’s daily duties.
E-learning is individualized, interactive, computer based training, whose
content was developed by a qualified subject matter expert. The trainers and
subject matter expert must be available to answer questions and provide
guidance and assistance to those taking the e-learning training. Webinar is
an internet based seminar created and taught by a qualified trainer. An
employer using a webinars format must be able to document and demonstrate
that the employee has actually attended the whole session.
Who can conduct the training?
Gone are the days when managers, owners or human resource personnel can
conduct the training. Providing a sexual harassment video outside of the
context of a planned and appropriate training will not hold up if your
business is audited or if you should find yourself in a court of law. The
new interpretation of the regulations addresses this issue specifically and
outlines the requirements of trainers. Trainers and educators “shall be
subject matter experts” who have legal education, coupled with practical
experience in training, or substantial practical experience in training in
harassment, discrimination and retaliation prevention.
How long must the training take?
The training must be at least two hours in duration. An employee may take
the training in at least 30 minute increments. E-learning must have a
bookmark to return the employee to where they left off.
How do employers track training?
They have two options including individualized training documentation or
“training year documentation”. If an employee uses the training year option,
they must make arrangements for those new and promoted hires to have
training in between the scheduled regular training.
For further questions regarding Sexual Harassment Prevention and Education
please contact Holly Seaton, Ph.D., or visit
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