Nelligan O’Brien Payne gratefully acknowledges the contribution of Daniel Hunter, Student-at-Law, in writing this blog post.
Many people face workplace sexual harassment on a daily basis. It can come in many forms, including derogatory comments, inappropriate touching, repeated advances, propositions, pressure to laugh at inappropriate jokes, or being forced to look at explicit imagery. And it can be difficult to know what to do.
Imagine this hypothetical: you have just finished school and after weeks of searching you land your dream job, an entry-level position with a “start up” technology firm working in research and data management.
On your first day at work, your boss compliments you on your outfit. At first, you think nothing of it. Things soon escalate, your boss and co-workers start commenting on your appearance, and then the comments begin to take on a sexualised nature. Your boss tells you to “learn to take a compliment”. The comments continue – daily – and you no longer feel comfortable at work. You feel pressured to stay because you cannot afford to quit. What do you do?
Know your rights
Under Ontario’s Human Rights Code (“Code”), every employee has a right to be free from harassment, including sexual harassment. If you have been harassed in the workplace, you may consider making a complaint to the Human Rights Tribunal of Ontario (“HRTO”).
In the 2005 case of Sanford v Koop, the HRTO adopted an expansive definition of sexual harassment. The tribunal found that, “…sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”
If the HRTO finds that you have been subject to harassment, it has broad authority to provide compensation, including:
- General damages for injuries to your dignity, feelings and self-worth. This is the most common award. Compensation is designed to recognize the inherent value in your right to be free from harassment and the experience of victimization.;
- Special damages for things such as lost wages and out-of-pocket expenses that you incurred because of the workplace harassment; and
- Non-financial remedies, such as the removal of the harasser from the workplace, reference letters and reinstatement.
When determining the appropriate compensation for injury to your dignity, feelings and self-worth, the tribunal will look at:
- The seriousness of the conduct: the nature, frequency and duration of the behaviour you experienced. Financial compensation tends to be lower where the offensive conduct involved a one-off comment or gesture.
- The effect of the conduct: your personal experience and any consequences you experienced because of the offensive conduct. Financial compensation tends to be higher where the employee is particularly vulnerable or has experienced significant hardship because of the workplace harassment.
Examples of recent cases
Here is how three recent HRTO decisions have dealt with harassment in the workplace.
In Lee v NCR Leasing (2016), the HRTO found that Lee’s employer encouraged her to wear a short skirt and show her cleavage to customers. In response, the HRTO found that even one incident or comment constituted a breach under the Human Rights Code; Lee was awarded $3,000 for injury to her dignity, feelings and self-respect.
In Iu v Markham Marble (2012), Iu’s employer made inappropriate jokes and comments about her body on a regular basis. Her employer would often walk in front of her desk with the fly of his pants unzipped. On one occasion he touched Iu inappropriately. Following this incident her employer began taunting her with gendered language. Iu experienced a prolonged period of harassment (approximately 6 months). The HRTO awarded Iu $20,000 for injury to her dignity, feelings and self-respect.
In Bento v Manito’s Rotisserie & Sandwich (2018), the owner hired his father to work as the kitchen manager. The kitchen manager routinely commented on Bento’s weight and body. Bento was also subjected to highly sexualised comments about her coworkers’ and customers’ bodies. The restaurant owner was aware of his father’s behaviour and failed to investigate. Bento wanted to quit but was reluctant to do so because she had no other source of income. Bento’s employment was terminated following a disagreement with the kitchen manager. The HRTO found that the kitchen manager’s comments constituted sexual harassment and promoted a poisoned work environment. The tribunal awarded $20,000 for injury to Bento’s dignity, feelings and self-respect.
You have a right to be free from harassment in the workplace, including sexual harassment. Whether it is “locker-room” talk or conduct of a more serious nature, you should not have to put up with any type of harassment at work.
If you believe your rights have been violated, do not hesitate to contact our Employment Law Group at Nelligan O’Brien Payne to assist you.