Workplace Sexual Harassment in the Spotlight

Workplace  Sexual Harassment By Kathryn F. Hordienko

In light of the recent Jian Ghomeshi controversy and the associated media attention, sexual harassment in the workplace has been brought to the forefront of the public conscience in Canada. For years, women and men alike have been silently experiencing systematic abuse at work. The recent public outcry relating to the allegations against Ghomeshi has opened the door for revisiting the rights of employees and obligations of employers vis-à-vis workplace harassment.

With the related allegations that CBC disregarded the complaints of workplace sexual harassment by a former Ghomeshi co-worker, into which an independent investigation is being conducted, this issue will remain under the microscope by the media for the foreseeable future. With that said, one poignant question remains unanswered: If CBC, one of Canada’s largest, most well-respected employer, which is notably also unionized, can allegedly turn a blind eye to workplace harassment, how many Canadian workplaces are not enforcing harassment policies?

Employers have a legal obligation, both under workplace health and safety and human rights legislation, to ensure that a written harassment policy is in place within defined parameters. They must ensure that employees are properly trained, and are aware of the existence and contents of the policy, including being familiar with the prescribed mechanism for making complaints, the investigation process, and what consequences can flow from a finding of harassment. In the 2013 annual report of the Manitoba Human Rights Commission, it noted concern with the “unusually high” number and the nature of cases of workplace sexual harassment, and stated that: “The continued existence of sexual harassment in the workplace is unacceptable and worrisome.”

Over two decades ago, in the 1989 decision of Janzen v. Platy Enterprises, the Supreme Court of Canada ruled that sexual harassment was discrimination on the prohibited ground of sex under human rights legislation. The Supreme Court of Canada described sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment.” The law has since evolved to recognize that sexual harassment can be physical or psychological, ranging from verbal innuendo and gestures, unwanted proposals for dates or sexual intimacy, leering, hugging, pinching, touching up, to and including sexual assaults.

The net effect of the Supreme Court’s ruling is that employees who are sexually harassed in the course of their employment are unable to sue for damages in the courts. Instead their only recourse is to file a claim of discrimination on the basis of sex before the applicable human rights tribunal. On the one hand, this makes the cost of litigating much more affordable for the victims of harassment as it is a less-costly and more accessible system; however, it also results in them being compensated far less for their pain and suffering. Awards for damages within the courts, which can include extraordinary damages for pain and suffering, are limitless, whereas before human rights tribunals they are significantly lower. Notably, before Manitoba human rights adjudicators, awards in the event of success rarely exceed $10,000.

However, the tide appears to be changing and low damages awards in human rights law, particularly respecting workplace sexual harassment, may become a thing of the past. The recent December 2014 decision of a Manitoba human rights adjudication panel in Emslie v. Doholoco Holdings Ltd. ordered payment of $35,000 to an employee who had been sexually harassed by the business owner. This amount included $15,000 for damage to the claimant’s dignity, feelings and self-respect, over $16,000 in lost wages, and $5,000 in exemplary damages “as punishment for any malice or recklessness involved in the contravention” as permitted under the Manitoba Human Rights Code. This harassment included an “ongoing stream of sexual innuendo” and persistent inappropriate and unwelcome touching, and led to the employee quitting and being unable to find employment for 2.5 years due to related stress. The adjudicator noted that employees who are unemployed due to harassment-related stress can be awarded significant damages through an order to fully compensate employees for financial losses suffered as a result of the discrimination, including loss of wages and benefits. This precedent-setting decision may cause employers to take pause before harassing or turning a blind eye to harassment in the future.

As was made evident by the Ghomeshi scandal, workplace policies are only effective if they are enforced. The allegation that CBC management did not take action when a complaint of sexual harassment was made against Ghomeshi by one of his co-workers would be an example of a failure to enforce a set policy. It is imperative that policies are put into place, employees are trained, and any complaints are properly addressed and investigated, with the appropriate discipline imposed. Failure to diligently address workplace sexual harassment can lead not only to exposure under human rights legislation, but also to a reduction in profits through the cumulative effect of poisoned workplaces, reduced productivity, and bad publicity.

The bottom line is that in Canada employees have the right to be protected from sexual harassment, whether it be through workplace policies, or the protection provided under safety and health and human rights legislation. Gone are the times when sexual harassment and abuse in the workplace were tolerated or swept under the rug. The public is recognizing the need to create healthy places of employment, and zero tolerance attitudes respecting workplace harassment and violence.

It is critical that employers are aware of their legal obligations to have a harassment policy in place, which is being properly enforced, to fulfill their legal, social, and arguably moral, responsibility to create harassment-free environments for their workforce. It is equally important for employees to be aware of both the existence of the policy and their legal rights respecting workplace harassment.

Kathryn F. Hordienko is an employment lawyer at Fillmore Riley LLP. She can be reached at khordienko@fillmoreriley.com or (204) 957-8365.