What to do about sexual harassment in the workplace: Reasonable Doubt

More than half of Canadian women have experienced sexual harassment at work

Feminists have been writing about and railing against the depth and regularity of sexual harassment and sexual assault for decades. Finally, it seems people are listening. The news stories surrounding Jian Ghomeshi, Harvey Weinstein, #MeToo and now Louis C.K. have captured the world’s attention in what feels like a new way. Long-known public “secrets” that were previously accepted or ignored due to patriarchy are now ruining careers.

Sexual assault and sexual harassment are common. There are over 600,000 self-reported sexual assaults per year in Canada. This number should likely be much higher given problems of underreporting. You are more likely to experience assault if you are a women, young, have mental health concerns, LGBTQ, Indigenous, disabled or poor. Perpetrators are overwhelmingly men. One study suggests that more than half of adult women in Canada have experienced sexual harassment in the workplace.

Sexual harassment is conduct, remarks or gestures of a sexual nature likely to cause offence or humiliation to an employee, that might be perceived to place sexual conditions on employment or employment opportunities, or that is degrading to someone because of their sex or sexuality. Common examples include demanding hugs, invading personal space, unnecessary physical contact, inappropriate staring, sexual jokes or sharing sexual pictures, requiring someone to dress in a more sexual manner, paternalistic behavior based on someone’s gender, jokes or insults related to someone’s gender, and so on.

The Occupational Health and Safety Act and the Human Rights Code both prohibit sexual harassment. Employers with five or more employees are required to have policies that comply with the law surrounding sexual harassment with statements that:

1. All employees are entitled to employment free of sexual harassment

2. The employer will make every reasonable effort to ensure employees are not subject to sexual harassment

3. The employer will take disciplinary measures against perpetrators of sexual harassment

4. Set out how sexual harassment may be brought to the employer’s attention with an alternate contact in case the perpetrator is the employer

5. The name of complainant will not be disclosed unless necessary for the investigation and,

6. Employees have a right to make a human rights complaint.

Employers must investigate all potential incidents of sexual harassment, even when no formal complaint is made.

I spoke with Nicole Simes, an employment lawyer with MacLeod Law Firm, about sexual harassment in the workplace. Sexual harassment complaints are an unfortunately common part of her practice. On average she talks to a new person every week who has experienced sexual harassment at work.

There are a number of legal options available for someone who has experience sexual harassment at work. Simes says that it is usually worth talking to a lawyer in the beginning so you can understand the legal landscape and your options. In some cases, informing yourself on the law will be all you need to proceed forward on your own.

Simes says the first step that lawyers often recommend is to inform human resources or your manager. Employers have an obligation to take your complaint seriously and to conduct a proper investigation. If they act on your complaint and address the behaviour, then that is positive. If they do not act on your complaint, then it will open up further legal avenues available to you.

Employees can make an application to the human rights tribunal if the employer was involved in the sexual harassment or did not take reasonable steps to address it. The tribunal can award damages for lost income, out-of-pocket expenses and injury to dignity. Awards for injury to dignity are generally in the range of $10,000 to $20,000, with larger awards reserved for more frequent and serious incidents of sexual harassment and assault. If you want to continue working at your job, then this is the best option because it allows you to receive compensation for injury to dignity without resigning.

Employees can start a formal lawsuit as a result of sexual harassment if the employer was involved in the sexual harassment or did not take reasonable steps to address it. Employees can seek damages for breaching the employment contract, including lost wages (which may include termination pay and/or severance pay) and damages for injury to dignity. This option is available if you are terminated or resign due to sexual harassment. Compensation arising from a lawsuit is generally greater than what is allowed through the human rights tribunal, though the process is more complicated.

Recent changes to the law now also allow employees to make a complaint to the Ministry of Labour, who will conduct an investigation pursuant to the Occupational Health and Safety Act. This investigation would not result in compensation and is instead focused on addressing unhealthy work environments.

Employers cannot fire or discipline an employee because they make complaints of sexual harassment. If they do, you would, again, have legal recourse for compensation related to lost income and injury to dignity.

There are at least two main problems with the law surrounding sexual harassment. First, the law is complainant driven, which is made difficult by the power imbalance between complainants and perpetrators. Sexual harassment is more commonly used against people who are perceived to be vulnerable. The power dynamic makes it difficult to come forward for fear of not being believed, losing your job, retribution, or how it will affect your working relationships. For live-in caregivers, the power dynamic is increased by the fact that employees live with their employers and depend on them for their citizenship applications.

A second problem with laws surrounding sexual harassment is that the awards are often low. It can be difficult to undergo the emotional toll of a legal case and to afford a lawyer when the eventual award will likely be under $30,000.

Simes says the real shift needs to be proactive and happen at a cultural level, which, in the workplace, falls to the responsibility of management to create a healthy culture from the top-down. Employers must be vigilant, keeping in mind low reporting rates, to ensure that they have policies that take complaints, even whispers of an incident, seriously to ensure that sexual harassment is not tolerated. Employees should know they will not face reprisal or fear being disciplined or terminated when they raise complaints with human resources. Employers hiring new employees should not view past complaints of sexual harassment as a mark against a potential hire.

Joseph Fearon is a personal injury lawyer with Preszler Law Firm LLP. Reasonable Doubt appears on www.nowtoronto.com on Mondays. Follow @JWCFearon on Twitter.

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