Sexual Harassment in the Workplace

Generally speaking, every employee in Canada, regardless of status or position, has the right to be free from discrimination in the workplace, including harassment, sexual or otherwise. These rights have been codified in various human rights codes that apply federally and provincially.

Despite the existence of laws, sexual harassment does occur in many workplaces across the country. If you experience sexual harassment in the workplace, it is important to understand your rights and how to assert them to ensure your protection and safety, as well as to compensate you for any losses or difficulties you have experienced due to such harassment. 

In this blog, we explore sexual harassment in the workplace, including what constitutes it, how to identify it, and what remedies may be applied in instances where such abuse is proven.

27-Year-Old Alleges Sexual Harassment by 60-Year-Old Boss

The applicant in Aloy-Sadakane v Data & Scientific Inc. was 27 years old when the corporate respondent hired her as an officer manager. Her direct supervisor in her employment position was the individual respondent, who was the executive vice-president of the corporation and was 60 years old when the events in question occurred.

The applicant alleged that in the three months, she had worked for the corporate respondent, the personal respondent had made persistent, unwanted comments about her sexuality, touched her sexually on numerous occasions, and repeatedly subjected her to irrelevant sexual comments. Despite the applicant advising the personal respondent that his actions were unwelcome, he continued to engage in the offensive behaviour until the applicant took medical leave to address the anxiety and stress caused by the inappropriate behaviour. Two weeks later, the applicant resigned her position with the corporate respondent because of sexual harassment. Thereafter, she commenced a complaint of sexual harassment in her employment before the Ontario Human Rights Tribunal.

What Constitutes Sexual Harassment in the Context of Employment?

In Ontario, the Human Rights Code provides, in section 5, that every employee has a right to be free from discrimination in their employment based on any of the enumerated grounds. Section 7(2) of the Code specifically prohibits sexual harassment in the workplace. 

Section 10(1) of the Code defines harassment as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” The Tribunals and courts have together established precedents that indicate that sexual harassment includes any behaviour that is of a sexual nature that engenders negative job-related consequences for the victim of the harassment. It has also been acknowledged that sexual harassment may include abuse of power. When such harassment occurs in a workplace environment, it constitutes both abuses of sexual and economic power, as, in such circumstances, the victim is subjected to attacks on their self-respect and dignity as both an employee and as a human being.

How Can Sexual Harassment in the Workplace be Proven?

Complaints of sexual harassment brought before a human rights tribunal must be proven on the balance of probabilities (i.e., it is more likely that the events in question occurred as described by the complainant). The evidence required to prove such a claim to this standard must generally be cogent, convincing and clear. However, the tribunal will consider whether an inference of discrimination can be made based on circumstantial evidence, where possible.

The Legal Test for Sexual Harassment in Employment

The test for sexual harassment in the workplace requires that the person who complains of such harassment prove four things:

1. That the person accused of sexual harassment was an employer, agent or coworker of the victim
2. That the accused person harassed the victim by engaging in discourse or behaviour that they ought reasonably to have understood to be unwelcome
3. The accused person harassed the victim in the victim’s own workplace
4. That the accused person harassed the victim because of the victim’s sex

Was the Applicant in This Case Sexually Harassed?

The tribunal was satisfied that the applicant in this case had suffered harassment at the hands of the individual respondent. In particular, the tribunal noted that it was undisputed that the personal respondent had “engaged in the course of vexatious comment and conduct that was unwelcomed by the applicant,” which included persistent sexual touching of the applicant despite her immediate objections and repeatedly asking the applicant to engage in a sexual relationship with the personal respondent.

What are the Remedies for Sexual Harassment in the Workplace?

The Tribunal is granted authority, under section 45.2 of the Code, to make any of the following remedies or combination thereof in response to a substantiated complaint of sexual harassment:

1. An order to pay monetary compensation to the victim for any injury that results from the harassment, including injury to feelings, dignity and self-respect
2. An order to make other-than-financial restitution to the victim of the harassment
3. An order that any party to the complaint must undertake to do something that the Tribunal opines will promote compliance with the Code

Concerning orders to pay damages for injury to dignity, feelings and self-respect, the tribunal will consider the following factors in assessing damages:

1. The hurt feelings and embarrassment felt by the victim, as well as any loss of confidence, dignity and self-respect they experienced
2. The victimization experienced by the complainant
3. The vulnerability of the complainant in the circumstances in which they suffered harassment
4. The seriousness/severity of the offensive behaviour 

Generally speaking, the more severe or prolonged the offensive behaviour, the greater the damages awarded to the victim of the behaviour.

What was the Appropriate Remedy in This Case?

In this case, the court found that $50,000 was sufficient to compensate the applicant for injury to her dignity, feelings and self-respect, given that the behaviour she had been subjected to had been persistent, offensive and unwanted. Moreover, the applicant was awarded nearly $30,000 in damages for lost wages. The tribunal also issued an order that the individual respondent (i.e., the person who harassed the applicant) provide confirmation, within 6 months of the date of the order, that he had completed a sexual harassment prevention course and an order and that the corporate defendant include a sexual harassment section in their company employment handbook within this same timeframe.

Contact Ottawa Employment Lawyers at Tierney Stauffer LLP for Employee Sexual Harassment Claims

Tierney Stauffer LLP’s dedicated employment lawyers are here to protect your rights and seek justice. With years of experience in handling sexual harassment claims in the workplace, we understand the complexities and emotional toll it can take. We’ll provide personalized guidance, advocate for your rights, and work tirelessly to achieve the best possible outcome. Contact us today for a confidential consultation at 1-888-799-8057 or visit us online.