July 2018

By Ned Nolan and Mark Daly

The #MeToo movement is a long overdue awakening which is bringing to light the prevalence of sexual harassment in our society – particularly in the workplace.

Often thought of as a cultural movement fuelled by social media, #MeToo also has to function as a legal movement fuelled by intelligent advocacy, litigation and heightened legal compliance by employers.

If #MeToo has taught us anything, it is that workplace sexual harassment is way more common than most people wanted to accept. In fact, a recent study reveals that half of Canadian women say they have experienced sexual harassment at work.

Janzen v. Platy Enterprises Ltd., [1989] S.C.J. No. 41 is a seminal Supreme Court decision on workplace sexual harassment. In that decision, the Court defines sexual harassment broadly as conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for victims. There is no requirement that there be intent, nor any requirement that there be physical touching.

Workplace sexual harassment is also defined by statute. Under the Occupational Health and Safety Act (the “OHSA”) sexual harassment is considered:

“a course of vexatious comment or conduct against a worker, in a workplace because of sex, sexual orientation, gender identity or gender expression where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know the solicitation or advance is unwelcome.”

With such a high rate of occurrence and a widely cast legal net, employment lawyers are bound to encounter sexual harassment cases on a regular basis. Because of that, we have an important role to play in the #MeToo movement. We must provide sound guidance to employer clients to help them abide by their legal obligations so that sexual harassment can be prevented and/or dealt with properly in the first place. And we must advocate for women (and in some cases, men) who have experienced sexual harassment at work and who rely on counsel to effectively amplify their voice so that they can be heard within the legal system.

Be Proactive. Studies have shown that occurrences of sexual harassment are strongly correlated to workplaces with lax policies and laissez-fair attitudes on the subject. It is one thing to copy and paste a harassment policy from the Ministry of Labour website. But all workplaces are different, and many – particularly larger ones – can benefit from carefully tailored programs such as bystander training, educational seminars, third party investigations, workplace restoration procedures and even harassment “hotlines” or other effective reporting mechanisms.  These things can help stop sexual harassment before it happens – or at least before it causes serious damage to the victim.

            Investigate. Employee clients are always surprised to learn that sexual harassment is not prohibited under the OHSA per se. The health and safety branch of the Ministry of Labour will not investigate or provide remedies in response to sexual harassment itself. Rather, the Act imposes strict requirements on employers in terms of the policies and programs which must be in place to deal with sexual harassment when it does occur. Most notably, the OHSA was updated in 2016 to require that employers conduct an investigation “appropriate in the circumstances” in response to all harassment complaints including sexual harassment complaints.

An appropriate investigation is crucial for all parties. For complainants, obviously, the investigation is the mechanism through which she is initially heard and taken seriously. For the accused, the investigation must present a fair opportunity for explanation. For the employer, a proper investigation can limit liability on multiple fronts. Firstly, failure to investigate is a breach of the OHSA and can result in fines and provincial court prosecution. Secondly, failure to adequately investigate can trigger employer liability where it may not otherwise have arisen both under the Ontario Human Rights Code and in a civil suit. Thirdly, a poor investigation which results in discipline or dismissal of the accused, can result in wrongful dismissal damages and damages for bad faith in the manner of dismissal awarded against the employer.

#BelieveTheWoman. #MeToo is about the refusal to brush accusations of sexual harassment under the rug. It is about lending credence to the voices of women amidst the objections of powerful men; thus spawned the hashtag #BelieveTheWomen.

Of course, the legal system is designed to uncover the truth, whatever it may be. But the starting point for any investigation (and certainly for plaintiff’s counsel) should be to take all allegations seriously and assume good faith, recognizing how rare it is for completely false allegations to be made and how difficult it is for victims to come forward. Lawyers have a heightened responsibility in sexual harassment cases to ensure that their own latent biases, assumptions (and “male privilege” in the case of male counsel) do not compromise the effective amplification of the victim’s voice.

Framing the Issue. When litigating on behalf of victims of sexual harassment, it is important to choose the right tools and the legal tool box available for dealing with sexual harassment cases is extensive – perhaps uniquely so.

Of course, sexual harassment can often be criminal and the police ought to be involved when the conduct in question involves violence or the threat of violence, touching or stalking for example.

As previously discussed, failing to have proper procedures in place to deal with sexual harassment can give rise to employer liability under the OHSA and in such cases, complainants can submit a complaint to the Ministry of Labour which is free and easy for them to do. It does not require that the complainant litigate the matter or hire counsel.

One of the most common tools for dealing with sexual harassment is the Ontario Human Rights Code (“the Code”). Sexual Harassment at work is prohibited by the Code which states that:

Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Employees are also protected under the Code from sexual solicitation from someone in a position to confer or deny a benefit and they are protected from reprisal in the event that a complaint is made regarding sexual harassment in the workplace.

These provisions are powerful legal tools and damages awarded by the Human Rights Tribunal – particularly in sexual harassment cases – are clearly on an upward trajectory.

When another cause of action exists other than breach of the Code (such as wrongful or constructive dismissal), it is often advisable for employees to sue civilly and include a claim for breach of the Code within the larger lawsuit. Civil courts are specifically granted jurisdiction to enforce the Code in such circumstances by virtue of s.46.1(1) thereof.

Sexual harassment can be grounds for a civil claim in its own right as well. Up until recently, whether or not sexual harassment was a recognized tort was considered a live legal issue. That issue appears to be settled and numerous decisions have recognized the tort of sexual harassment which requires that the plaintiff show:

1) Outrageous conduct;

2) Intent to cause, or reckless disregard for causing, emotional distress;

3) Severe emotional distress on the part of the plaintiff, and;

4) A causal link between the conduct and the distress.

Interestingly, it has recently been held that medical evidence is not necessary for the plaintiff to meet part 3 of the test.

Workplace sexual harassment can also result in civil damages for bad faith in the manner of dismissal, constructive dismissal, and damages for the torts of assault, battery, and intentional infliction of mental suffering.

            Establish Liability. Individual harassers are liable for their own conduct under the Human Rights system and applicable civil actions. Employers, however, will often be held liable when sexual harassment occurs in the workplace which is important to establish for victims seeking recovery.

Direct employer liability for acts by their employees is established under the Code, for example, when the employer fails to properly respond to discrimination and harassment, including: failure to have procedures in place, failure to investigate complaints, and failure to make resources available to complainants and staff.

Vicarious liability can arise when the harassing employee is a directing mind of the organization, when the employer materially increased the risk and allowed the perpetrator to have the control he or she had over the situation which resulted in the harassment, and when the harassment took place “in the course of employment” (meaning the employee acted with authorization, as expected, in furtherance of his or her duties, and/or under the control of the employer).

In conclusion, lawyers have to counsel employees and employers on the evolving law of sexual harassment. In doing so, we play an important role as the legal branch of the #MeToo movement and owe it to both employee and employer clients to contribute meaningfully to this overdue societal awakening.

nn@nolanlaw.ca

md@nolanlaw.ca

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