Sexual Harassment: A Delicate Matter for Employers
The recent wave of sexual harassment allegations across Canada should serve as a reminder to employers to carefully consider their response to sexual harassment complaints in order to satisfy the duty to provide a harassment-free workplace.
The definition of sexual harassment varies by jurisdiction but generally means engaging in vexatious conduct or comment of a sexual nature that is known or ought reasonably to be known to be unwelcome: Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252. Some examples from the case law include (1) asking questions and discussions about a person’s sexual life; (2) physical contact in a sexual way; (3) commenting on a person’s attractiveness; or (4) persisting in asking for a date after having been refused.
The response to a sexual harassment complaint is a delicate matter, in particular because the employer may be vicariously liable for the actions of its employees. The employer cannot fire the alleged harasser or simply dismiss the complaint without a proper investigation. The rights of all employees involved must be respected, which means a thorough investigation is essential to resolving the complaint.
What constitutes a reasonable response to sexual harassment allegations in the workplace has been addressed in the case law, including the framework established in Wall v. Embro, 1995 CarswellOnt 4205 and further summarized below in B.L. v. Marineland of Canada Inc., [2005] O.H.R.T.D. No. 30:
(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
In PEI, the Employment Standards Act requires every employer to have and post a sexual harassment policy, which is readily available to all employees. Such a policy should include, inter alia, the following: (1) a definition of “sexual harassment” and the types of behaviours that are prohibited; (2) a statement that harassment will not be tolerated and that disciplinary action will ensue; and, (3) an internal complaint mechanism wherein the incident(s) can be reported to both a supervisor and/or management.
Recently in J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (CanLII), the Ontario Human Rights Tribunal awarded damages to three employees totalling over $100,000.00 in compensation for injury to dignity, feelings and self-respect damages. Although the conduct in this case was an egregious example of sexual harassment, the gravity of this award demonstrates the higher-end of repercussions for failing to ensure a harassment-free workplace.
