In light of the recent conviction of Harvey Weinstein on two sexual assault charges in New York, we take this time to revisit the topic of sexual assault and harassment in the workplace. The Metoo movement has taken workplaces by storm.
While employees are protected by the Ontario Human Rights Code, the Canadian Human Rights Act, and the Canada Labour Code from sexual harassment at the workplace, legislative protection is limited as to how much it can curtail instances of workplace sexual harassment.
While often, complaints and determinations of workplace sexual harassment occur after multiple occurrences, depending on the circumstance and severity, one instance may be enough to constitute sexual harassment.
Extreme instances of sexual harassment such as stalking or inappropriate touching may be more obvious to identify, and as a result, more complaints may stem from these types of harassment. On the other hand, there are many examples that, while more subtle and more difficult to recognize, still constitute sexual harassment. Sometimes, an unwanted sexual comment may be played off as a joke or a gesture of affection; however, the employee knows the comment left them feeling demeaned and powerless.
While occurrences of sexual harassment can be distinct, the Supreme Court of Canada has defined sexual harassment to also include conduct that creates a poisoned workplace environment.
Employers have a legal obligation to provide employees with a safe and harassment-free work environment, whether the harassment stems from the employer, an employee, or an agent within the workplace. While this means that comprehensive policies, a clear complaint procedure, and proper training are crucial, these proactive steps are also limited. Employers should also consider how they might change their culture so that the implementation of these practices can take root.
An equitable division of power at the workplace can assist with preventing power structures where sexual harassment is more likely to occur. It would also encourage any employees who have complaints to voice them openly without the fear of reprisal.
While employers may recognize that indirectly, productivity decreases where employees are subjected to poisoned or unsafe workplace environments, they often underestimate how high damages for sexual harassment can be.
Where an employee fails to provide a workplace free from sexual harassment and fails to act upon receiving a sexual harassment complaint, damages can be high. For example, while human rights damages for sexual harassment may vary between $5,000 and $50,000, an egregious case in front of the Human Rights Tribunal of Ontario resulted in damages of $200,000. Aggravating factors were the employer’s knowledge of the employee’s vulnerability and the immense harm caused. Employees may also seek damages in civil court where there is a claim for assault, battery, or intentional infliction of mental distress, as well as aggravated and punitive damages.
Thanks to the Metoo movement, tribunals and courts are increasingly recognizing the humiliation, distress, and stigma surrounding sexual harassment, and any damage award will reflect that.
Contact us for Help
If you are an employee who wants to address sexual harassment at the workplace, or an employer seeking to take proper preventative or responsive steps with respect to sexual harassment in the workplace, our team of lawyers would be happy to help you navigate your matter. Contact us by phone at (800) 771-7882, or email at firstname.lastname@example.org and we would be happy to assist.
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