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Liability for Workplace Sexual Assault: C.K. v. H.S.
The Ontario Human Rights Tribunal makes it clear that all work areas should be harassment free.
In a recent post of February 15, 2015, this blog discussed the legal implications of racial discrimination in hiring, and the potential liability of employers for actions taken by their agents or employees. Another important aspect of Ontario human rights law is the range of protections which the Ontario Human Rights Code, R.S.O. 1990, c.19 (the “Code”) provides against sexual harassment in the workplace. The recent decision in C.K. v. H.S., 2014 HRTO 1652 (CanLII) provides a vivid illustration of the remedies available to sexually harassed employees, and of the reasonable steps which employers should take to address sexual harassment allegations.
In 2010, C.K. was hired as a medical assistant in a naturopathic clinic. Roughly 7 days into her employment, she stayed late at the request of another employee (the “Respondent”), ostensibly so that he could train her. The Respondent motioned as if to touch C.K.’s rib, to which she objected. He also touched her thigh, at which point she said “no” and left the room.
The Respondent’s behaviour then became more egregious. Later that evening, the two parties were in a room where C.K. read out medication labels to the Respondent in order to demonstrate that she could pronounce their names and hence re-order them. C.K. read a label, got no response, and turned around to discover that the Respondent had exposed himself. He forced C.K. to touch him sexually, and groped her.
C.K. left work and informed her husband of the assault. That same evening, she called Dr. H, the owner of the company for which she worked. While there was some dispute about exactly what Dr. H said, the Human Rights Tribunal (the “Tribunal”) accepted that he had either suggested or at least agreed that C.K. should contact the police, took her complaint seriously, was understanding and compassionate, and believed that neither C.K. nor the Respondent would be at work the following day, since he was under the impression that the Respondent would be arrested that evening.
In the event, C.K. came to work the following day, accompanied by the police, who arrested the Respondent. Dr. H listened to the Respondent’s version of events, and ultimately dismissed him. The assault took place on September 15, 2010. C.K. resigned her employment on September 20. Dr. H. nevertheless kept her position open and did not replace her until March 2011. The Respondent was criminally convicted of sexual assault in 2012.
C.K. filed a complaint with the Tribunal against both the Respondent and her employer. Three issues confronted the Tribunal:
1. Did the Respondent’s actions amount to a violation of the Code?
2. If so, was C.K.’s employer liable for that violation?
3. What was the appropriate remedy?
Section 7(2) of the Code provides that every employee has the right to freedom from harassment in the workplace because of sex. Here the Tribunal laid out a clear test for establishing whether s.7(2) had been violated. It held that an Applicant must establish that:
1. The individual who harassed them was either their employer, their employer’s agent, or a fellow employee;
2. That individual’s conduct amounted to harassment, meaning a “course of vexatious comment or conduct towards the applicant that they knew or ought to have known was unwelcome”;
3. That individual harassed the applicant in the workplace; and,
4. That individual harassed the applicant because of his or her sex.
The Tribunal concluded that all four standards had clearly been met in this case; the Respondent was an employee, any reasonable person ought to have known that this kind of egregious sexual conduct would be unwelcome, the incident occurred in the workplace, and the Respondent’s actions were motivated by a desire to engage in sexual activity with C.K., which in turn was directly related to the fact that she was a woman.
Before rendering its final decision in 2014 HRTO 1652 (CanLII), the Tribunal rendered an interim decision, C.K. v. C[…] Inc., 2014 HRTO 572 (CanLII), in which it dealt with the question of the employer’s liability. The Tribunal clarified that an employer is not automatically liable for Code violations by its employees. Rather, employers must take reasonable steps to prevent and respond to Code violations, and failing to do so can make them liable for the conduct of their employees.
Relying on Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII), the Tribunal laid out three general criteria for determining whether an employer had met this standard of reasonable behaviour:
1. Was the employer aware of discrimination or harassment before the incident(s), and did it have appropriate policies and complaint mechanisms in place?
2. Did the employer take the complaint(s) seriously, and investigate them both reasonably and promptly?
3. Did the employer resolve the complaint(s) reasonably, provide a safe environment for the employee to return to (if they returned), and communicate its findings clearly to the employee?
The Tribunal emphasized that a standard of reasonableness is not one of perfection; an employer needs to choose one of several reasonable options, but not necessarily the “best” of those options. In this case, Dr. H’s actions met the reasonable standard. He took the complaint seriously, did not require C.K. to return to an unsafe environment, dismissed the Respondent after hearing his version of events, and kept C.K.’s position available for a reasonable amount of time. C.K.’s employer, therefore, was not found liable for the sexual harassment.
The Tribunal awarded two kinds of damages: damages for injury to dignity, feelings, and self-respect, and damages for lost wages. In light of the seriousness of the incident and its huge impact on the Applicant (who became socially withdrawn, was prescribed anti-depressant medication, and was unable to work anywhere she might find herself in an enclosed space with a male co-worker), the Tribunal awarded C.K. $45,000.00 in damages for injury to dignity, feelings, and self-respect. The Tribunal also awarded C.K. the lost wages she would have earned in the three months between leaving the clinic and securing replacement employment, some $6,760.00.
For employers, these decisions demonstrate that ensuring the existence of a safe, non-discriminatory workplace is not only a good practice but a legal requirement. Employers must take prompt, serious, and reasonable (but not necessarily perfect or ideal) action when they become aware of possible discrimination or harassment in the workplace.
For employees, this case serves as demonstration of the range of protections available against harassment, and the kinds of remedies available. The injury to one’s dignity and self-respect caused by harassment and discrimination is a recognized form of injury, compensable in law. It is important for employees to bring their concerns about discrimination and harassment to their employers’ attention quickly and emphatically.
If you have any questions about sexual harassment in the workplace, or about your rights and obligations in employment law generally, contact Monkhouse Law today for a free consultation.