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Posts tagged: sexual assault

Not Preventing Sexual Assault and Harassment in the Workplace is Now More Expensive

By , June 22, 2018 11:16 am

On average, damages awarded to an employee for a breach of the Human Rights Code, remain relatively low, typically $10,000 to $15,000. However, the HRTO recently released two significant decisions that reflect a willingness to award higher amounts. Both decisions involve sexual assault and sexual harassment against women in vulnerable circumstances.

In both cases, the owners of the companies were found to be personally liable along with the corporations.

The Cases

In A.B. v. Joe Singer Shoes Limited et al, 2018 HRTO 107, the employee worked for Joe Singer for 28 years. The allegations made by A.B. were of atrocious conduct. She stated that she was forced to perform oral sex, intercourse, and degrading sexual conduct. She accused her employer of watching pornography in his office. Her employer also criticized her skin colour, accent, and body. Although she had issues with her memory in her testimony, the HRTO still preferred her evidence, and found company and the owner both responsible for the sexual assault and sexual harassment. The HRTO ordered the respondents to pay $200,000 as compensation for injury to dignity, feelings, and self-respect.

Following Joe Singer, the HRTO released G.M. v. X Tattoo Parlour, 2018 HRTO 201. In X Tattoo, the applicant was a 15-year-old woman whose employer engaged in unwanted sexual discussion and forced the applicant to engage in sex acts. Looking to the Joe Singer decision, the HRTO awarded $75,000 in general damages (the maximum that the applicant had requested).

Lessons

Most employers would hope and believe that their staff and management would not engage in the conduct seen in Joe Singer and X Tattoo. However, the bar for the maximum damage awards has increased. We can expect that the average award level will also increase.

Employers need to ensure:

  1. that they create a workplace culture of no tolerance for harassment and violence. This includes having the appropriate policies and training in place;
  2. that they respond promptly to every sexual harassment complaint and investigate all complaints as well as incidents; and
  3. that those who come forward do not face punishment or reprisal for doing so.

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions about dealing with sexual assault or sexual harassment complaints and allegations and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

Patrick Brown: Could the Alleged Sexual Harassment/Assaults Have Been Prevented?

By , January 25, 2018 5:04 pm

Yesterday, CTV reported that two women alleged Ontario Progressive Conservative leader Patrick Brown sexually harassed and/or sexually assaulted them. Shortly after the story broke Mr. Brown resigned as party leader.

I don’t think Mr. Brown will deny he met either women. Instead I think he will claim that whatever happened was consensual.  In other words, classic “he said, she said” situations. If criminal charges are laid against Mr. Brown then the Crown will need prove the charges beyond a reasonable doubt. The same burden of proof as in the Jian Ghomeshi case.

This blog considers whether either situation could have been avoided from an employment law perspective.

If the federal government had addressed sexual harassment and sexual assault in the federal civil service and the House of Commons prior to 2013, then I think the 2013 incident could have been prevented. The Prime Minister could have stood up in the House of Commons and said the federal government is going to take a leadership role on this issue and take proactive steps to redress this societal problem. First, by saying it won’t be tolerated; second, by requiring all employees and MPs to comply with a sexual harassment policy; and third, by introducing a complaint procedure and encouraging employees to use it. This would have put MPs on notice of the cultural change the government was committed to leading and would have made all MPs think twice about sexually harassing staff. It would also communicate a very strong message to staff that the employer wanted people to bring forward sexual harassment complaints. In this climate, I think Mr. Brown would have thought twice before allegedly bringing a staff member back to his home or into his bedroom.

I don’t think the incident that took place over 10 years ago could have been prevented through workplace policies. According to the CTV report, the 17 year old female high school student did not appear to have any connection to Mr. Brown’s workplace and they do not appear to have met at a workplace event.

Given the societal change that has taken place in connection with sexual harassment and sexual assault over the last 5 years I do not believe nearly as many employees or politicians will put themselves in compromising situations in the future. The adverse consequences associated with sexual harassment and sexual assault allegations in 2018 is staggering.  Without these allegations, polls show Mr. Brown would have been premier of Canada’s largest province in June.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

Sexual Assault and Sexual Harassment At Work

By , January 25, 2018 4:30 pm

In the wake of workplace sexual assault allegations against Patrick Brown, I continue to reiterate what employers of any kind can do to try and prevent and discourage sexual harassment and sexual assault at work.

Given the context of the recent allegations, the first point appears particularly important.

1. As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where no explicitly sexual or gender-based comments are made, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Human Rights Code (the “Code”) for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing. 

2. Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.

3. Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Code. Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.

4. Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.

5. Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.

6. Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.

7. Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.

8. Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.

 

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

At Fault for Sexual Harassment: Employee Awarded $150,000 in General Damages

By , June 29, 2015 8:44 pm

General Damage Awards Before May 15, 2015

Since 2008, adjudicators appointed under the Ontario Human Rights Code have had the power to award unlimited general damages as compensation for injury to dignity, feelings and self-respect. Since that time however, very few adjudicators have awarded more than $ 40 000 and most awards are under $ 20 000.

May 15, 2015 Decision

That is until now. In a decision released on May 22, 2015, adjudicator Mark Hart ordered a corporation and its owner to pay a temporary foreign worker $ 150 000 in general damages because the owner sexually harassed/assaulted the worker.

The adjudicator found that the owner told the worker to perform oral sex on him on three occasions, that he engaged in sexual intercourse with her on three occasions and that the worker acquiesced because she was afraid that he would send her back to Mexico.

A Particularly Vulnerable Employee

Adjudicator Hart made his decision after 16 hearing dates. When awarding the employee $ 150 000 in general damages he took the following facts into account:

“(The employee) was 30 years old when she came to Canada. Her husband had been tragically killed, and she was left to support her two children. As a temporary foreign worker in Canada, (the employee) was put in the position of being totally reliant upon her employer. As Dr. Preibisch (an expert) testified, temporary foreign worker programs in Canada operate on the basis of closed work permits, which only entitle a migrant worker to employment with one designated employer. While theoretically possible to transfer employment to another employer while in Canada, there are significant barriers that make this practically impossible or at least very difficult. As a result, a migrant worker like (the employee) tends to be reliant upon the employment relationship with the designated employer to a degree that is not experienced by Canadian workers. Migrant workers like (the employee) live under the ever-present threat of having their designated employer decide to end the employment relationship, for which they require no reason and for which there is no appeal or review, thus being “repatriated” to their home country and thereby losing the significant economic and financial advantages of their Canadian employment upon which they and their families depend. In (the employee)’s case, the personal respondent was repeatedly explicit about this threat to send her back to Mexico if she did not comply with his demands and had demonstrated that he was capable of doing so by repatriating other Mexican women.”

Lessons to Be Learned

This case may turn out to be an outlier because the facts involved are so extreme and disturbing.

Alternatively, it may start a trend toward higher general damage awards in sexual harassment/assault cases.

It is interesting to note that the Ontario Human Rights Code (the “Code”) prohibits sexual harassment but it does not explicitly refer to sexual assault.

As a result of this $ 150 000 damage award, employees who have been sexually assaulted at work may start filing applications under the Code instead of commencing actions in the courts for civil sexual assault.

To file an application under the Code an employee does not need a lawyer and if the employee loses her case then the employee will not be ordered to pay any of the employer’s legal costs. The Code therefore provides better access to justice for vulnerable, low paid employees who have been sexually assaulted.

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

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