#MeToo has quickly caught wind as a widespread movement that sheds light on the prevalence of sexual assault and harassment, particularly in the workplace. As a result of the movement, society’s attitudes towards workplace sexual harassment have started to change; but, has this impacted how courts and tribunals approach sexual harassment cases?
Recent case law supports a moral and business case to embrace the movement. Judges and other adjudicators are responding to the movement with decreasing tolerance of workplace sexual harassment and assault.
In A.B. v. Joe Singer Shoes Limited, the Human Rights Tribunal of Ontario ordered the respondents to pay $200,000 in damages as compensation for injury to dignity, feelings and self-respect. The applicant, who was employed by the respondent employer, alleged that she had been sexually harassed and assaulted for years by her boss (the personal respondent), both at work and in her home.
The applicant claimed that her boss took advantage of her as a single woman with a son who had a disability. On multiple occasions, she alleged that he had sexually harassed her through comments and inappropriate touching. Further, she alleged that he had forced her to perform oral sex and to have sexual intercourse with him in his office after other employees had gone home.
The Tribunal found on a balance of probabilities that the respondent had sexually harassed the applicant both in her apartment and in the workplace. Through the repeated comments, sexual advancements and solicitations to the applicant, the respondent had created a poisoned work environment for the applicant.
In awarding damages, the Tribunal recognized that the applicant was particularly vulnerable given that she had no family in Canada, was single, lived above the store and English was not her first language. It noted that a damages award will fall at the higher end of the spectrum where the applicant has experienced particular emotional difficulties because of the harassment. In this case, the medical evidence demonstrated that the applicant suffered from anxiety, stress, depression and post-traumatic stress disorder as a result of the sexual trauma.
In a different case, the Tribunal awarded $75,000 in damages to a 15-year-old applicant who had been sexually assaulted by the owner of the tattoo parlour where she volunteered. The personal respondent had been criminally charged and plead guilty to sexual assault, invitation to sexual touching and sexual interference. The Tribunal once again noted the vulnerability and power imbalance between the applicant and the respondent along with the particularly egregious conduct of the respondent in this case.
In both of these cases, the personal respondents were the owners of the business, which gave them the power and authority to take the actions they did against the complainants. This was sufficient for the Tribunal to find liability against the respondent employers under Ontario’s Human Rights Code.
Tribunals and courtrooms are not the only places where attitudes towards sexual harassment are shifting. For many years, all provincial and federal human rights statutes have prohibited workplace sexual discrimination and harassment. Moreover, recent amendments to the law also demonstrate the stronger legislative position taken to address sexual harassment and assault in the workplace. In 2016, the Sexual Violence and Harassment Action Plan Act (Bill 132) amended Ontario’s Occupational Health and Safety Act to protect employees from workplace sexual harassment. It also created obligations for employers to develop and maintain workplace harassment policies, establish a workplace harassment program and carry out an investigation when a complaint arises. Most other provinces have similarly amended their respective occupational health and safety legislation in the last few years. Plainly, this shift was well underway even before #MeToo gained momentum internationally.
What employers need to know
Before A.B. v. Joe Singer Shoes Limited, the Tribunal had never awarded more than $150,000 in compensation to victims of sexual harassment or assault in the workplace. While a damages award will depend on a number of factors, tribunals and courts are sending a strong message.
Employers must take prevention and response to sexual harassment and assault very seriously. A failure to ensure that employees operate within a safe work environment could cost thousands of dollars and impact your business reputation.
Although the Code states that an employer is not vicariously liable for the acts of sexual harassment or solicitation committed by an employee, a duty exists to keep the workplace free of discrimination and harassment. Employers are responsible for taking all reasonable steps to address sexual harassment complaints. This obligation is triggered once the employer is made aware of a complaint. Where, as in A.B. v Joe Singer Shoes Limited, the perpetrator occupies a senior position within the company, their actions and inaction may be deemed to be those of the company itself.
Even were it not legally required (which it is), employers should develop and implement a workplace harassment program, which includes a safe and confidential reporting mechanism, and a timely and impartial process for investigating and resolving complaints. To minimize any risk, employers should ensure that any incidents of sexual assault or harassment are investigated and that perpetrators are appropriately disciplined.
The #MeToo movement shows no signs of slowing. There is no time better than the present for employers to re-evaluate and update their workplace harassment training, programs and policies.
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