Quebec’s Innovative Law
On June 1, 2004, the Canadian province of Quebec became the first North American jurisdiction to
ban non-discriminatory workplace harassment when amendments to the Labour Standards Act prohibiting the “psychological harassment” of workers came into effect. The act was passed in 2002. The following is how psychological harassment in the workplace is defined in an ACT RESPECTING LABOUR STANDARDS (R.S.Q., c. N-1.1):
… any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.
Moreover, a single serious incidence of such behaviour that has a lasting harmful effect may constitute psychological harassment. It must then be demonstrated that this behaviour affects the person’s dignity or physical or psychological integrity and that it results in a harmful work environment for the employee.
A four-part test to determine psychological harassment from by the Quebec Commission des normes du travail:
1. A vexatious behaviour that is repeated or serious in nature:
- It is a behaviour that is humiliating, offensive or abusive for the person who is subjected to such behaviour, that undermines his self-esteem or that causes him torment. It is a behaviour that exceeds what a reasonable person* deems appropriate in the accomplishment of work. Each of the words, incidences of behaviour, actions or gestures taken on their own may be harmless, insignificant, but it is everything taken together or the accumulation of these words, behaviours, actions or gestures that allows one to conclude that a harassment situation is present. However, the repetitive nature is not an essential component of harassment. Indeed, a single serious incidence of behaviour, a word, gesture or action may also be considered psychological harassment if it produces a continuous harmful effect for the person concerned. If there is only one cause, the harmful effect must be perpetuated in time. An isolated incidence of behaviour, such as violence or aggression whose impact on the victim is perpetuated in time, may constitute psychological harassment.
2. Hostile or unwanted in nature
- The incidences of behaviour, words, actions or gestures in question must be seen as hostile or unwanted. However, in some cases, such as at the time of aggression or sexual harassment, the unwanted nature does not necessarily require that the victim have clearly expressed his refusal or disapproval.
3. Effect on the person’s dignity or psychological or physical integrity
- Harassment has a negative impact on the person. A person who is the victim of harassment may feel diminished, degraded, denigrated, both personally and professionally. The harassment situation may also cause a deterioration in the physical health of the person who is the victim of harassment. However, there does not necessarily have to be a negative impact on the victim’s health.
4. A harmful work environment
- A harmful work environment is a work environment that is detrimental, that is harmful to someone, that has an adverse impact on the person who is the victim of the harassment. The work atmosphere created by the behaviour may lead to the victim’s isolation in his work environment for instance.
The presumed harasser’s intention does not need to be taken into consideration to conclude that there is psychological harassment. The words, gestures, actions or behaviour of the harasser do not have to be associated with a harmful intent; rather, it is the effects on the person concerned that are taken into account.
* A reasonable person is: a person who is well informed about all the circumstances and who were he to find himself in the same situation as that of the employee claiming to be the victim of harassment would also conclude that such behaviour is vexatious.
Finally, it should be noted that Quebec’s Act does not require that the harassment result in proven effects on the employee’s health, but only that it affect an employee’s dignity or
psychological or physical integrity and result in a harmful work environment. The law puts the focus on the impact or effects of the harassment, as well as on the target’s perception of the harassment, rather than on the harasser’s intention or knowledge.