Sexual harassment in the workplace is a significant problem despite social unacceptability
Ontario Human Rights Code
Sexual harassment can range from verbal comments to unreasonable solicitations and touching to sexual assault intercourse. The strength of a sexual harassment case depends on the circumstances surrounding the incident. See Miller v. Sam’s Pizza House (1995), 23 C.H.R.R. D/433 for a summary of the wide range of sexually harassing behaviour. Ontario’s human rights legislation is the Ontario Human Rights Code, and just like federal legislation, it exists in part to prevent sexual harassment. There are also common law employment law remedies in Ontario to deal with sexual harassment. These remedies range from torts such as assault and the infliction of nervous shock and mental suffering, to actions for wrongful dismissal, constructive dismissal and breach of the implied obligation of good faith and fair dealing.
Employers have a positive obligation to keep the workplace free from sexual harassment. An employer failing to do so may be open to liability. Employers have a duty to develop and maintain a written policy with respect to workplace violence and harassment, including sexual harassment, and also have a duty to investigate allegations of sexual harassment. If employers are unwilling or simply fail to investigate complaints, recent developments in the law allow the Ministry of Labour to force the employer to hire an impartial investigator to look into the matter and produce a report. This will all be at the expense of the employer. An employer taking a reprisal against an employee for raising sexual harassment concerns faces additional exposure to remedies under the reprisal provisions of the Ontario Human Rights Code.
Human Rights Tribunal of Ontario
In Ontario, an employee may file a complaint with the Human Rights Tribunal of Ontario or include the allegation as part of a civil law suit such as constructive dismissal, wrongful dismissal or a tort like the intentional infliction of mental suffering. One can be compensated for mental distress, humiliation and loss of dignity as well as for economic loss. A civil action may lead to punitive damages, whereas at the Human Rights Tribunal of Ontario, the employee can seek re-instatement or damages in lieu of re-instatement. This is an attractive option if the employee does not feel comfortable returning to the workplace. Other non-financial remedies include removing the harasser from your work environment or providing a letter of reference.
The Human Rights Tribunal of Ontario also has the power to order public interest remedies, such as requiring an employer to develop non-discriminatory policies or to implement education and training programs. These remedies can have a broader educational impact, and often seek to prevent similar discrimination from re-occurring in the future. If you have experienced sexual harassment in the workplace or you require assistance developing and implementing an effective and powerful workplace sexual harassment policy, please contact Ball Professional Corporation.
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
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