Workplace Sexual Harassment: A Review
The media attention focused on Jian Gomeshi and the allegations of sexual harassment has brought the issue of sexual harassment and the workplace to the forefront of public discussion. It is, therefore, an appropriate time to summarize the law of workplace sexual harassment.
Workplace sexual harassment is an abuse of sexual and economic power that attacks the dignity of the victim as an employee and a human being. It is not tolerated in the workplace. While, generally, employers have to overcome a very high bar to successfully dismiss an employee for cause that bar is lowered if an employee has committed acts of sexual harassment.
Sexual harassment in the workplace falls along a continuum. It can range from non-consensual physical contact that rises to the level of a criminal offence to less serious forms of harassment that would include off colour jokes and suggestive words and gestures. Serious acts of sexual harassment will likely justify the immediate dismissal of the offender for cause. Less serious forms of harassment will likely require that the offending employee be warned as part of a progressive disciplinary process. If the sexual harassment continues, then summarily dismissing the employee may be appropriate.
The courts and human rights tribunals are very sensitive to the power imbalance that exists between senior employees who engage in sexual harassment and their victims. As a result, supervisors and managers are held to a higher standard. The Ontario Court of Appeal has stated that “when a manager or other senior employee engages in serious sexual harassment and denies that the misconduct occurred or otherwise refuses to recognize the unacceptable nature of his or her conduct, termination of the employment relationship may be the appropriate employer response”.
Supervisors and managers, in particular, must be wary of believing that subordinate employees are consenting to their behavior. Given the power imbalance, junior employees may not feel they are able to refuse or complain about their superiors’ behavour.
An employee can be guilty of sexual harassment even if the target of the harassment is unaware of the misconduct. For example, a Saskatchewan court recently upheld the dismissal of a supervisor for cause because the supervisor had repeatedly used extremely offensive and degrading language to describe three women employees who staffed the office at the company’s northern work camp. Significantly, the supervisor had not used the offensive language in front of the female employees but instead had directed his comments to other male employees.
After hours interactions between a supervisor and other employees might also constitute workplace sexual harassment and be grounds for dismissal. In particular, company retreats and parties will be considered to be the “workplace” when dealing with allegations of sexual harassment.
Off-duty conduct can justify the decision to terminate an employee for cause if the employee’s conduct will bring the employer into disrepute. This is a fact driven exercise that involves an individual assessment of the offender and the employer. For example, sexual misconduct outside the workplace that may justify the decision to terminate a well-known radio host for cause may not justify the decision to summarily dismiss an employee who works on an assembly line.
An employee is not required to continue work in an environment that has become poisoned because of sexual harassment. He or she will have the option of quitting and claiming constructive dismissal. In addition to damages for loss of wages the employer may also be liable for moral damages and/or human rights damages. That said, a work environment will not normally be considered to be poisoned as a result of one incident of sexual harassment. If the employer takes proactive steps to investigate the complaint and address the issue a claim for constructive dismissal will likely fail.
An employee who consents to a sexualized workplace may not be able to claim human rights or constructive dismissal damages at a later date. For example, an employee who engages in sexualized banter and jokes with other co-workers may find an unsympathetic court or tribunal if the employee later claims that the jokes created a poisoned work environment.
A workplace harassment complaint places an employer in a difficult position. The employer will likely be under significant pressure to deal with the allegations quickly. Moreover, both the accused and the alleged victim have rights and need to be treated fairly. An investigation that “gets it wrong” can have a devastating impact with consequences far beyond the workplace.
Employers are potentially liable not only to the alleged victim but also to the accused depending on how they respond to allegations of sexual harassment. Although an employer is unlikely to face liability simply because a sexual harassment investigation was clumsy or a subsequent trial found that the allegation of sexual harassment was not substantiated, it may face significant liability in the form of punitive and aggravated damages if its investigation was inept or unfair. The courts will not tolerate sexual harassment investigations that are malicious, vindictive or are initiated with a foregone conclusion.
The courts have not set a specific standard that employers will be held when conducting a workplace investigation. The nature of the investigation will depend on the nature of the allegations. Therefore, when dealing with allegations of serious sexual harassment it may be appropriate for an employer to hire an external investigator if that expertise does not exist in-house. An impartial outside investigator will help shield the company from a finding that its investigation was biased or undertaken for ulterior motives.
Finally, there is no need for employers to exaggerate the risk of liability as a result of workplace sexual harassment and impose workplace policies that overreach. One media commentator discussing the Ghomeshi affair stated that he would never compliment an employee who came to work wearing a new piece of clothing. That is a safe but unnecessary practice. There is no need to ban intimate relationships that may develop in the workplace or discussions of the latest episode of Game of Thrones or ban. Instead, ensure that it is the company’s practice to take harassment complaints seriously and call on outside expertise whenever there is doubt about how to proceed. Sometimes the victim merely wants an apology and a promise that it will not happen again. In other cases, the employer will need to act decisively by terminating the employment of the perpetrator.