Overview of Discrimination and Harassment Based Violations

The Human Rights Act of New Brunswick currently protects against discrimination and harassment based on 14 grounds: age, marital status, religion, physical disability, mental disability, race, colour, ancestry, place of origin, national origin, social condition, political belief or activity, sexual orientation and sex, including pregnancy. It may be that additional grounds are implicitly included in the Act by virtue of section 15 of the Canadian Charter. The Human Rights Act also expressly prohibits sexual harassment in employment, housing and public services.

In Canada, discrimination can be defined in everyday terms as a practice or standard that is not reasonably necessary and that has the effect, whether intentional or not, of putting certain persons or groups at a disadvantage because of their shared personal characteristics, such as race, sex or religion, in a way that perpetuates the view that they are less capable, or are less worthy of recognition or value.

Canadian courts have recognized that discrimination may be "direct," involving an intentional difference in treatment, usually motivated by bigotry, prejudice or stereotypes. However, it may also be unintentional, as in the case of "systemic" or "adverse effect" discrimination that occurs when a uniform practice has a disproportionately adverse effect on a disadvantaged group, and the needs of the group are not "reasonably accommodated." Harassment is a form of discrimination.

Employers, service providers and others who are required not to discriminate must go beyond treating everyone the same without regard to race, sex and the other personal characteristics protected in human rights laws. They must, in addition, accommodate as much as reasonably possible the protected characteristics of those to whom such uniform treatment would have a discriminatory effect. This means that they must avoid standards that have a discriminatory effect where this can be done without sacrificing their own legitimate objectives or incurring undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost.

Guidelines on complaint procedures and enforcement

Complete text of the New Brunswick Human Rights Act

Definition of "sexual harassment"

247.1 In this Division, "sexual harassment" means any conduct, comment, gesture or contact of a sexual nature

1. that is likely to cause offence or humiliation to any employee; or


2. that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

R.S., 1985, c. 9 (1st Supp.), s. 17.

Right of employee

247.2 Every employee is entitled to employment free of sexual harassment.
R.S., 1985, c. 9 (1st Supp.), s. 17.

Responsibility of employer

247.3 Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment.
R.S., 1985, c. 9 (1st Supp.), s. 17.

Policy statement by employer

247.4 (1) Every employer shall, after consulting with the employees or their representatives, if any, issue a policy statement concerning sexual harassment.

Contents of Policy statement

(2) The policy statement required by subsection (1) may contain any term consistent with the tenor of this Division the employer considers appropriate but must contain the following:

1. a definition of sexual harassment that is substantially the same as the definition in section 247.1;


2. a statement to the effect that every employee is entitled to employment free of sexual harassment;


3. a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;


4. a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer's direction who subjects any employee to sexual harassment;


5. a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;


6. a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and


7. a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.

Publicity

(3) Every employer shall make each person under the employer's direction aware of the policy statement required by subsection (1).
R.S., 1985, c. 9 (1st Supp.), s. 17.

The most important harassment procedure is prevention. One way to prevent sexual harassment is by providing education about the nature of harassment and how to respond if someone is being harassed. Education opportunities are available by contacting the Sexual Harassment Advisor. Peer education is also available through groups like SEE (Social Empowerment and Expression Gender Awareness Group).