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There’s a tidal shift happening in human rights – Are employers ready?

human rightsThe proliferation of the #MeToo movement in the media speaks to a growing intolerance of sexual assault/harassment, which has, in the past, been swept under the rug. This intolerance is being mirrored in Human Rights Tribunal decisions across the country, as awards for damages relating to sexual harassment are showing an upward trend. However, there are other changes brewing in human rights law, particularly in Ontario. A recent decision on age discrimination and benefit coverage may require significant amendments to employer benefit plans and resulting costs to employers.

Sexual harassment and assault awards

A prime example of the upward trend in damage awards can be found in the case of A.B. v. Joe Singer Shoes Limited, in which the Human Rights Tribunal of Ontario (“HRTO”) recently awarded one of its highest damage awards to date to a former retail worker who was sexually harassed and assaulted by her landlord and employer. The HRTO awarded her $200,000 for injury to dignity, feelings and self-respect (plus pre-judgment interest dating back to 2008). The adjudicator concluded that the egregious and repetitive nature of these assaults created a “poisoned work environment”, which justified the significant award.

One of the determining factors in this case was the employee’s evident vulnerability. As an immigrant and a single mother, her options were restricted – she did not have the freedom to up and leave both her job and apartment. As a result, she was trapped and suffered extensive humiliation and hurt feelings due to her employer’s actions. The lasting effects that these events had on the employee, such as the exacerbation of her anxiety and depression, were also important factors in the granting of the damage award.

There are other noteworthy decisions that have been released in the wake of #MeToo. In G.M. v. X Tattoo Parlour, the Applicant was a 15-year-old high school student interning at a family friend’s tattoo shop. The family friend initiated sexual discussions then sexually assaulted the employee. He later offered her money and a free tattoo if she would have sex with him. The family friend was pled guilty to sexual assault, invitation to sexual touching and sexual interference, but disputed the quantum of damages sought at the HRTO hearing. The adjudicator agreed with the Applicant’s request for $75,000 in damages for injury to dignity, feelings and self-respect.

The adjudicator in G.M. cited a 2015 decision, which was one of a few earlier HRTO decisions that involved significant damage awards. In O.P.T. v Presteve Foods Ltd., the employee was a member of a group of migrant workers brought to Canada from Mexico under the Federal Temporary Foreign Worker Program. Her employer had the power to send her back to Mexico, with no possibility of appeal. He made it very clear that he held this power and used it as leverage over his employee, repeatedly assaulting and harassing her over the course of many months. As a result, the adjudicator awarded the Applicant $200,000 in damages.

Age-based discrimination changes

Prior to 2006, Ontario permitted mandatory retirement plans that, in effect, discriminated against employees who were 65 or older. In 2006, the Ontario Human Rights Code (the Code) was updated to prohibit discrimination against employees who were 65 or older on the basis of their age. These protections relate to all aspects of employment, including hiring, promotion, training and termination. However, exclusions in the Employment Standards Act, 2000 (the “ESA”) and the Code regarding benefit protection beyond age 65 were not repealed.

For many years, employers, their counsel and their insurers accepted that they were permitted to discontinue certain types of benefit coverage at age 65. On May 18, 2018, however, the HRTO held that the relevant exceptions in the Code and the ESA amount to age discrimination and violate the Canadian Charter of Rights and Freedoms.

The case concerned Wayne Talos, a teacher at the Grand Erie District School Board in Brantford, Ont., whose extended health, dental and life insurance benefits ended when he turned 65, though he was still working full-time. These benefits were crucial for Talos because he was caring for his gravely ill wife, who has ovarian cancer.

The HRTO agreed that this termination of some benefits resulted in reduced compensation for senior employees performing the same work as their fellow colleagues, and that it was a form of discrimination based on age.

However, unlike certain courts, the HRTO does not have the authority to strike down laws. As at the date of writing this article, it is unknown whether section 25.1 of the Code or the offending provisions of the ESA will be amended by the legislature in response to this decision. If these exemptions are repealed, employers and insurers will no longer be able to justify the termination of certain employee benefits for those over age 65.

The PH Perspective: What this all means for employers

Bad practices can lead to big damages: Employers should view the trend to award large damages in cases of harassment and/or discrimination in the workplace as a sign that the Human Rights Tribunals mean business. In order to avoid such damages, employers must ensure that inclusion and respect are societal values that are promoted and integrated into the workplace. Policies on discrimination and harassment are essential but so is training and the implementation of a system to ensure that breach of policies or behaviour contrary to these values is dealt with appropriately.

Working with your insurer to avoid discrimination claims: In anticipation of the potential that the Code and the ESA in Ontario may be revised to eliminate the ability to stop benefit coverage at age 65, employers should be speaking to their benefit providers now to determine what options may be available. If a benefit provider will not amend the coverage accordingly, an employer may wish to consider other funding options (such as self-insured coverage) for the affected employees.

By Patrizia Piccolo, Partner and Co-Founder

*special thank you to Sabrina Morcos (Piccolo Heath LLP legal intern) for her assistance with this article.

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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