KPA Lawyers – August 4, 2017

In the winter of 2017, a Brampton company was ordered to pay $60,000 (plus legal costs) to a woman who endured constant on-the-job sexual harassment before being fired. Unfortunately, cases like these are not isolated. Often, sexual harassment in the workplace goes unreported for a number of reasons. Employees often fear losing their jobs or livelihood, and many employees do not want to jeopardize their future career prospects by reporting workplace sexual harassment.

Sexual harassment is a type of discrimination based on sex. It’s also illegal. The Ontario Human Rights Code (the Code) prohibits all types of discrimination based on sex, and includes sections that deal with sexual harassment. The Code offers this protection in five areas of life, and they are (1) services, goods and facilities; (2) occupancy of accommodation (housing); (3) contracts; (4) employment; and (5) membership in vocational associations such as trade unions.

Fortunately, the Code makes it public policy in Ontario to recognize the dignity of every person. The law is aimed at creating understanding and mutual respect for the dignity of each person, so that everyone can feel a part of the community, and able to contribute to their communities.

Apart from the fact that sexual harassment is inherently wrong and illegal behavior, sexual harassment can limit a person’s ability to earn a living, get housing, get an education, feel safe and secure, and otherwise take part fully in society. Companies and businesses that do not have policies and systems in place to prevent sexual harassment can face decreased workplace performance, low morale, increased absenteeism, and potential legal expenses. While the law protects both men and women from sexual harassment, women are typically more affected than men. There is also a culture of sexism that plays a role in the social circumstances that fuel discrimination based on sex.

What is Sexual Harassment?                                                                                                                        Section 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” Some types of comments or behavior are unwelcome based on the response of the person subjected to the behavior, even when the person does not explicitly object. An example could be a person withdrawing, or walking away in disgust after a co-worker has asked sexual questions.

Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands. Victims of harassment do not need to demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. That type of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one.

Human rights case law has interpreted and expanded on the definition in section 10 of the Code. In one of the earliest sexual harassment cases in Canada, a tribunal found that in employment, discriminatory conduct may exist on a continuum from overt sexual behavior, such as unsolicited and unwanted physical contact and persistent propositions, to more subtle conduct, such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.

Report It                                                                                                                                                                    Depending on your workplace, there may be a dedicated human resources department which may (or may not) effectively resolve the matter internally. You may be asked what type of resolution you want to see happen. On the other hand, if you work in a company that does not have such a department, and speaking to the owner or manager is not an option (possibly he or she is the perpetrator), then you can turn to the Human Rights Tribunal of Ontario (HRTO).

If you feel that you’ve experienced discrimination or harassment, you can file an application with the HRTO. The HRTO deals with claims of discrimination and harassment that are brought under the Human Rights Code. The HRTO aims to deal with all cases in a fair, just and timely way. After an application is filed, the person who filed the application is called the Applicant, and the person (or company) against whom the allegations are made are called the Respondents.

The HRTO first offers persons involved the chance to settle the dispute through mediation. In the context of sexual harassment, this option may be necessarily be realistic, given that the victim may not wish to mediate or settle the case without a formal hearing.

The following is a list of sexual and gender-based harassment (this is not an exhaustive list):

• demanding hugs

• invading personal space

• unnecessary physical contact, including unwanted touching, etc.

• derogatory language and/or comments toward women (or men, depending on the circumstances), sex-specific derogatory names

• leering or inappropriate staring

• gender-related comment about a person’s physical characteristics or mannerisms

• comments or conduct relating to a person’s perceived non-conformity with a sex-role stereotype

• displaying or circulating pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)

• sexual jokes, including circulating written sexual jokes (e.g. by e-mail)

• rough and vulgar humour or language related to gender

• sexual or gender-related comment or conduct used to bully a person

• spreading sexual rumours (including online)

• suggestive or offensive remarks or innuendo about members of a specific gender

• propositions of physical intimacy

• gender-related verbal abuse, threats, or taunting

• bragging about sexual prowess

• demanding dates or sexual favours

• questions or discussions about sexual activities

• requiring an employee to dress in a sexualized or gender-specific way

• paternalistic behaviour based on gender which a person feels undermines their status or position of responsibility

• threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).

Proof and Evidence                                                                                                                                                  What kind of proof or evidence is necessary to convince the Human Rights Tribunal that the allegations are true? Many of us have heard about cases in the news where Courts have dismissed charges involving sexual assault, and it’s easy to feel that the burden of proof is too high. However, the policies and practices of the Human Rights Tribunal are vastly different than in criminal code. The Tribunal does not require proof “beyond a reasonable doubt”, which means victims of sexual harassment or sexual assault in the workplace have a higher chance of proving their case than if the same case was heard in criminal code.

Given that the Tribunal does not require proof “beyond a reasonable doubt”, you may be wondering what is required. Legally speaking, the standard of proof required is on a “balance of probabilities”, which is the civil standard for burden of proof, not the criminal standard. In other words, you can rely upon your own witness testimony to convince the Tribunal that the wrongful behavior “more likely than not” took place, and that the behavior constituted sexual harassment within the meaning of the Code.

Today, many persons who are inclined towards making comments or requests that constitute sexual harassment are also often foolish enough to do so via text message, social media and email where such communications can be submitted (and accepted) as evidence at the Tribunal. If you’re dealing with an employer or colleague that restricts his or her illegal behavior to in person interactions or telephone calls, it’s not uncommon for victims to record such events on their phones, or download free call-recording apps.

Remedies                                                                                                                                                                Where the Tribunal finds that an Applicant’s rights have been violated, Section 45.2 of the Code provides the Tribunal with broad remedial powers. The Tribunal may award monetary compensation and make orders to ensure future compliance with the Code.

In some sense, money cannot undo or make up for the potentially traumatic experience of being the victim of workplace sexual harassment. That being said, a Respondent who is forced to pay tens of thousands or potentially hundreds of thousands of dollars in compensation to an Applicant is often a deterrent from committing the same behavior again. Such outcomes can effectively prevent the same events from happening to other people. Apart from monetary orders, companies have even been ordered to post signage within their office spaces advising all employees of their rights under the Human Rights Code.

Speak to a Lawyer                                                                                                                                                  It’s important to keep in mind that this article is not legal advice. If you have questions about a specific situation, you should always consult a lawyer (click here) before taking any action regarding your case. Many lawyers offer free consultations, and may accept cases on a contingency (no-win-no-fee) basis if the case is sufficiently strong, and there is a high likelihood of collecting compensation for any injury to your dignity, feelings and self-worth.

#sexualharassment #humanrightscode #humanrightstribunal #workplaceharassment