Workplace Sexual Harassment

The recent news on celebrity misconduct in sexual wrongdoing has brought to the forefront once again the issue of workplace sexual harassment.

In Ontario, there are numerous forms of legal recourse for an employee who has become the victim of such conduct. These remedies are not limited to male to female adverse conduct. Any gender mix will be allowed a remedy.

Human Rights Code

A human rights complaint can be initiated under the Human Rights Code. This is generally referred to as an “administrative remedy”. Damages may be awarded to the successful applicant for injured feelings, lost income where there has been a termination, and also reinstatement. The sum for injured feelings tends to be in the range of $10,000 to $50,000 depending on the severity of the adverse conduct, the frequency, the vulnerability of the victim, and the emotional harm suffered.

The administrative remedy does not make the employer responsible for the claim of sexual harassment. One exception is where the wrongdoer is the “controlling mind” of the company. In that event, both the individual and the company will be responsible. A second exception is where the company has permitted a pattern of misconduct in which event a claim can be made based on a “poisoned work environment”.

The administrative remedy awards no legal costs to the successful party. No punitive damages can be awarded, even in sexual harassment claim where often the conduct is deliberate and even malicious. The standard of proof required to show a claim under the Code is lower than a normal civil claim. The standard for a successful appeal of a human rights award is very high and hence difficult to win. There are no discoveries or advance disclosure of the opposing party’s evidence under oath.

Civil Action Based on Human Rights Code

Ontario law also allows a civil claim based on a human rights violation where it is accompanied by a second action, which is usually a wrongful termination claim. The judge in court then applies human rights law for the sexual harassment claim under the Code.

Tort Claim by Civil Action

Apart from the remedy under the Code, employees subject to sexual harassment can sue civilly for compensation for emotional harm and lost income and in certain cases punitive damages where the conduct is malicious, as often is the case in sexual harassment. These actions are based on tort claims which are civil wrongdoings. Typical claims are the intentional infliction of mental distress or battery. In an action for battery, based on physical touching, the damages are presumed. In the appropriate context, it is the tort of choice.

The damage claims are typically much higher than an administrative remedy.[1]  Civil courts are also more prone to award claims for future income loss.

In a civil action, the employer can be sued based on the principle of “vicarious liability”, which makes the company responsible for the actions of its employees where there is a close and material connection to the position of the employee and the event of wrongdoing. It is not an easy argument as is illustrated by a recent case in which a woman sued a taxi cab company for a severe assault suffered by her by a cab driver while she was intoxicated. The Court of Appeal declined to see the close and material connection and dismissed the claim against the company.

Where there is a criminal conviction, in Ontario, a civil claim may invoke the provisions of the Victims’ Bill of Rights, in the case of a sexual assault or an attempted one. In that event, emotional distress damages are presumed, as is the case in the tort of battery.

Workplace Policy and Duty to Investigate

Ontario’s Occupational Health and Safety Act in makes it mandatory for the employer to maintain and implement a policy to ensure its workforce remains free from threats of workplace violence and harassment. The Act makes the investigation of such complaints compulsory. In addition, the policy developed by the company must state how the complaint is to be reported and in what manner the complaint is to be investigated.

The policy must include steps and procedures to permit employees to report workplace harassment. It must also explain the process in place by which the employer will investigate and deal with complaints.

Harassment is defined broadly and will include sexual harassment. The actual words used define workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”.

The law applies to all provincially regulated employers in the province. Where the number of employees is six or greater, the policies must be in writing and posted in the business premises.

If there was any doubt as to the necessity of the employer to create a sexual harassment policy, this legislation will quickly remove it. A complainant under the Human Rights Code may well argue that the failure to develop and implement such a policy will give rise to direct employer liability.

Complex Issues Require Clear Advice

The law on this subject is not straightforward. There is often an issue for a wronged employee to consider as to which legal process to use. Each has distinct advantages and disadvantages.

From the employer’s prospective, it is important to have in place as a preliminary steps the required published workplace policies. Should a complaint be made, it should be immediately investigated. Proper remedial actions should then be taken.

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] For example, $300,000 awarded in M.B. v Deluxe Windows and Mickey Weig