Sexual harassment in the workplace is, as was noted in 19891 by Chief Justice Dickson of the Supreme Court of Canada:
an abuse of both economic and sexual power, one which constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
These words ring true even as we speak today.
The legal issues of sexual harassment in the employment context are not straightforward.
This book reviews the legal remedies afforded to those who have fallen victim to acts of sexual harassment that are available through the human rights administrative process and also in the civil courts.
Also reviewed are other related remedies such as constructive dismissal, the use of traditional tort remedies in the civil courts, such as assault and/or battery, which are often coupled often with a claim of vicarious liability to hold the employer accountable for the conduct of its employees.
In addition, there is a review under what circumstances the employer may rightly terminate such persons who have sexually harassed other employees in the workplace.
Further consideration is given to the need to conduct a proper investigation of any workplace sexual harassment complaint within the administrative process and also the claim which may follow by a person terminated based on such unfair allegations in this context.
The administrative remedy for sexual harassment under the statutory human rights process is also considered in depth.
Compensatory damages through the human rights process, while still noticeably lower than the sums awarded in comparable tort actions in civil courts, have become more realistic. The claim for lost income, when pleaded properly, can lead to substantial recovery, which often will be much more powerful that a wrongful dismissal claim in the civil court.
The case of Impact Interiors, a decision of the Ontario Court of Appeal, provides a good illustration of this principle. In this instance, one of the two complainants had been employed for two days, at which time she quit due to the sexual abuse she suffered. One applicant was awarded her income loss by the Board of Inquiry for a period of two years and 18 weeks, up to the date of hearing. This is far beyond the sum a wrongful dismissal claim would have allowed.
Reinstatement is also a potent remedy which may be employed by the human rights board. The human rights administrative remedy can be quite powerful. The evidentiary and interpretative rules are much more liberal than those of a common law court in the case of a tort claim.
The issue of sexual harassment remains a serious issue in today’s workplace. This text may be of assistance to counsel, human resource professionals seeking to maintain a proper and safe working environment and to all persons interested in learning the law on this subject matter.