The combination of sex and power in the workplace still presents
a challenge. Although women predominantly are the targets of this
harassment, same sex harassment and that of men by women is
If the harassment violates the Criminal Code (beyond thigh
slapping and unwelcome neck massaging), the employer faces being
brought before the Human Rights Tribunal and the individual could
be charged after the ensuing police investigation.
Even if the conduct falls short of criminal, unanswered
complaints against the "office hugger" leaves employers
accountable before the Ontario Human Rights Tribunal. Employers
have become more vulnerable than ever. If they are perceived by
their employees as turning a blind eye to these emotionally loaded
provocations, they could even be sued.
Historically, the amounts awarded against employers who were
found to have violated the Human Rights Code were low (usually
between $7,000 and $10,000). Employers primary fear has been the
repercussions to the corporate image following a Tribunal decision,
which is easily accessed by the public.
Recently though, the monetary awards have become significantly
higher. A losing decision can now have a financial impact on a
small employer — even put them out of business.
I find smaller businesses grapple with the appropriate manner
with which to deal with an employee who makes a sexual harassment
complaint. Their first step should be to take a sexual harassment
Sometimes employers are virtually certain the complaint is
fabricated and asks for my counsel as to how to quickly dismiss the
complaint, not wanting to continue to employ a troublesome
My advice is clear: Terminating the complainer is not an option,
and ignoring his or her complaint even less so. Instead, have
someone senior immediately investigate the complaint.
This summer, the Ontario Human Rights Tribunal released the
decision of J.D. v. Ultimate Cut Unisex, where it awarded three
employees a total exceeding $150,000 — a staggering amount
for a small employer.
Salon co-owner, Rocco Valentini, was accused of harrassing
female employees, while co-owner Paul Portelli, turned a blind
The conduct was egregious: Valentini forced the women to quit
after he massaged them, hugged them, asked them on dates, discussed
sex with them, talked with them about having sex with other women,
made sexual jokes, and suggested to at least one of them that she
sleep with his rich friend for money because, "he likes
sleeping with younger women." The bulk of his interactions
with the complainants were salacious. When the women complained, he
Part of the Tribunal's award dealt with lost wages, but the
much heftier portion was for financial compensation for the
discrimination and harassment. Two awards were for $40,000, and the
third for $25,000.
The Tribunal has raised the level of accountability for small
employers, and expects them to handle prickly harassment complaints
in the same manner as large companies — with clear-cut
policies, workshops, training sessions and sophisticated bodies to
investigate complaints. Your financial picture as a small employer
is equally inconsequential.
Here are some tips to help you deal with a complaint of sexual
Conduct interviews with everybody involved. Be specific in your
questions — dates, times, locations, what was said and were
there any witnesses. Ask if there are emails, voicemails or other
documented evidence. Try to be neutral and don't draw any
conclusions until the end.
Assure everyone you will be fair and keep that promise. The
person who makes the complaint must be told he or she won't be
fired or disciplined for coming forward. Also ensure people
don't discuss the incident outside of the investigation.
Make a final decision and follow through on it. If the evidence
strongly suggests the alleged harasser is guilty, move to
discipline them (a warning for less serious conduct might sometimes
suffice). If you learn that the incident relates to a consensual
relationship between a manager and a subordinate that went awry,
then implementing a policy prohibiting managers from dating
employees might be an option.
Keep in contact with your lawyer about appropriate steps to take
toward either the complainer and/or harasser. While there are
rights associated with how to deal with the complainant, how you
discipline or deal with the harasser is equally important.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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