Dec 11

Sexual Harassment In The Workplace: Coercion Is Not Consent

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Sexual harassment in the workplace is a complicated matter. Victims of harassment are often afraid to come forward out of fear that any moments where they did not object will be held against them. Fortunately, Ontario’s legal system is sophisticated enough to recognize that a person may participate in seemingly consensual sexual activities with a person in some moments but still be sexually harassed or assaulted by that same person in others.

In the Human Rights Tribunal of Ontario (HRTO) case of NK v. Botuik, 2020 HRTO 345 (CanLII), the HRTO awarded $170,000 to a woman who was forced into a relationship and sexually assaulted by her direct supervisor. Damages awarded at the tribunal level are an attempt to restore the applicant to the position they would have been in had the harassment not occurred. 

The Facts

The applicant NK had a difficult upbringing characterized by sexual assault and exploitation from a young age. By 17, her father facilitated her sexual abuse by older men and had introduced her to cocaine. Eventually, she found herself addicted to crack cocaine and living on the street. She was, however, able to turn her life around, get clean, finish her high school education and complete a college program. In 2016 she was working hard to provide for herself and her son when she was hired at Alan Stewart Homes as a part-time Direct Care Worker. 

At the time, the position seemed like an amazing opportunity. She would be paid more than at any of her previous positions, she would be doing work that was meaningful for her and after a three-month probation period, she would receive medical benefits for her and her son. Devastatingly, however, her supervisor was able to see how much the job meant to her and proceeded to use his position of authority to force her into a relationship and ruin her life for years to come. 

As is common in cases like these, the supervisor’s behaviour began as just a bit strange and his comments about his authority to decide shifts were seemingly innocent. Slowly, however, he demanded more and more of NK and made it clear that he would jeopardize her job if she did not comply. 

At first, the supervisor just touched NK in small discrete ways, seemingly innocently, and made comments such as that she smelled good. He then started calling and texting her on her personal cell phone about topics unrelated to work. While still in her probation period, the supervisor gave NK training that would normally be reserved for more experienced staff. He also took it as an opportunity to make an inappropriate comment about oral sex. 

This behaviour made NK uncomfortable but was not enough to warrant concern. However, matters changed when, about a month into her work, the supervisor asked her to come in early. He made a comment about needing a massage and proceeded to lay down on the couch in the office. NK was incredibly uncomfortable but was afraid of losing the job she had just secured. After the massage, he kissed her on the lips. In the weeks that followed he began to treat her in an increasingly sexual way at work until incidents were almost routine. 

NK recognized that the supervisor’s advances in the workplace were inappropriate, but she felt completely powerless and overwhelmed by the behaviour. He directed her to perform sexual acts and whenever she objected, he simply became more persistent and forceful. At times when she resisted, he would remind her of his position and the power he had within the company. Indeed, NK was dependent on the job to provide for herself and her son. She was also advancing and taking on more senior responsibilities. 

NK became emotionally numb to what was going on. She gave in to sex with Mr. Botuik because he would ignore her objections and because she was made to feel that this was just what she had to do in order to keep her job. Eventually, the lack of resistance made the situation look as if it was a real relationship. She could not explain why she ultimately acted as if she was in a relationship with Mr. Botuik. Whenever she tried to break things off with him, he would tell her that she could forget about her job if she did. 

After several months, NK was able to find some relief by transferring to another residence within the Alan Stewart Homes system. She was no longer under Mr. Botuik’s direct supervision, but he continued to pursue her outside of work, despite her objections. He would also randomly appear at her new workplace and appeared to have a close relationship with her new supervisor. Mr. Botuik continued to remind MK of his authority within the company. 

The final culmination of the behaviour was a violent sexual assault, at NK’s home, perpetrated by Mr. Botuik when NK told Mr. Botuik that she was seeing someone and tried to end the relationship once and for all. Mr. Botuik lied to the police and their employer that she had sexually assaulted him. This led to both being dismissed from their positions after an internal investigation found that Mr. Botuik and NK engaged in inappropriate conduct in the workplace, that the relationship was consensual, and that the employer had behaved appropriately at all points. 

The Tribunal’s Decision 

The Tribunal found NK’s testimony to be credible and reliable. NK’s case was also strengthened by the detailed testimony given by the nurse who examined NK after the sexual assault. The Tribunal found that essentially of Mr. Botuik’s behaviour was persistent and severe sexual harassment. It did not matter that some had occurred outside of the workplace because it was related to her employment. 

To show sexual harassment, the applicant has to meet a four-part test, showing that it was more likely than not that:

1) the perpetrator was the employer, employer’s agent, or another employee

2) the person engaged in behaviour that they knew or ought to have known would be unwelcome

3) the harassment happened in the workplace and

4) the harassment happened because of the person’s sex.

The Tribunal did not have any difficulty finding that Mr. Botuik was NK’s direct supervisor, that he knew or should have known that the behaviour was not welcomed, that the events had occurred in the workplace, and that the nature of the sexual harassment was directly related to the fact that NK was a woman. 

The Tribunal also found that there was sexual solicitation as the sexual advances were made by a person who had the power to determine NK’s advancement and ongoing employment. The sexual assault, despite occurring in NK’s home, was also found to constitute sexual harassment because it was a consequence of the forced relationship which was only possible due to Mr. Botuik’s power as her workplace superior. His assault also led to her losing her employment, a very real job-related consequence of the act. 

Takeaways

For NK, the ending is a somewhat happy one. She sought compensation of $100,000 for the harm she experienced. The Tribunal awarded her $170,000 as compensation for injury to dignity, feelings and self-respect.  

While NK’s case is on the more extreme end, elements of the case are important for any worker experiencing sexual harassment in the workplace. We can learn from this case:

1) A person’s unique individual vulnerability is important for deciding a case. NK’s history of abuse and status as a single mother made her particularly vulnerable to Mr. Botuik’s harassment. In cases like this, the Tribunal grants awards on the higher end of the scale, recognizing that the victim was objectively vulnerable given her history and circumstances at the time.

2) Internal investigations are not the final word. The fact that the employer’s internal investigation found that the behaviour was consensual did not matter to the tribunal. The Board Member noted that the report was not binding and that he was free to reach his own conclusions.

3) Victims do not need a perfect record to come forward.The HRTO noted several inconsistencies between the oral testimony, witness statements, and allegations set out in the Application. However, the Tribunal recognized that overall, her case was nevertheless strong and was able to show that the events had occurred on the balance of probabilities (more likely than not).

4) The authority of the perpetrator matters. Mr. Botuik had all of the power in the relationship as NK’s direct supervisor and used it. The fact that he did give her more shifts and additional training showed the Tribunal that there was indeed sexual solicitation that occurred. 

5) What seems like consent can actually be coercion. On several occasions, NK agreed to see Mr. Botuik socially outside of work. The Tribunal found that the coercion outside of the workplace was not different than the sexual demands at the residence. Refusing to meet Mr. Botuik’s demands outside of work would have had the same consequences as refusing at work. The fact that things continued after NK was transferred did not matter as he continued to remind her that he had authority in the company, even if he was not her direct supervisor.

6) State of mind matters. The Tribunal repeatedly noted how NK went emotionally numb, felt trapped, and caved into the relationship. NK lost herself in what was going on to the point that she eventually acquiesced to Mr. Botuik’s advances and even reciprocated. However, the Tribunal could see that this was an indication of how terribly she was treated, not an invalidation of it. The Tribunal recognized that NK was manipulated and mentally broken down to the point of fearful compliance. This was no different than being directly forced to participate in sexual acts in order to keep one’s job.

If you suspect that the behaviour of someone at your workplace constitutes sexual harassment, you should contact an employment lawyer as soon as possible. Monkhouse Law has a wide range of experience handling workplace harassment cases and can help guide you through your next steps. Contact us at 416-907-9249 or fill out this quick form.