Written on behalf of Peter McSherry
In a 2020 ruling, the Ontario Human Rights Tribunal awarded an employee $170,000 for sexual harassment and assault, which was above and beyond the $100,000 she sought in her application.
Employee Files Complaint for Sexual Harassment and Assault
The employee worked as a care worker for the employer, who operates a series of group homes serving individuals with significant disabilities, from January 28, 2016 to December 7, 2016.
Over the course of her employment, the employee alleged that she was sexually harassed, propositioned, subjected to unwanted touching, forced into a sexual relationship and ultimately violently sexually assaulted by her supervisor. After she reported the events to the employer, the employer held an investigation and summarily terminated both the supervisor and the employee.
The employee initially filed an application with the Ontario Human Rights Tribunal against both the employer and the supervisor. However, the employee subsequently withdrew her complaint against the employer after they were able to come to a resolution on the matter.
by engaging in an extended pattern of sexual harassment, solicitation, unwanted touching and, ultimately, sexual assault. Specifically, she alleged that the supervisor’s actions infringed s. 5(1) (Right to equal treatment in employment without discrimination because of sex), s. 7(2) (Right to freedom from harassment in the workplace because of sex) and s. 7(3)(a) (Right to be free from sexual solicitation by a person in position to grant a benefit) of the Code. The employee sought compensation of $100,000 for injury to dignity, feelings and self-respect.
The supervisor did not file a response or respond to the allegations in any way. As a result, he was noted in default and was deemed to have accepted all the allegations made by the employee.
Tribunal Awards Employee $170,000
After reviewing the uncontradicted evidence provided by the employee, the tribunal held that she had established that the supervisor had subjected her to persistent and severe sexual harassment both in and pertaining to the workplace, which engaged s. 7(2) (sexual harassment), s. 7(3)(a) (sexual solicitation) and s. 5(1) (discrimination) of the Code.
Having found that the supervisor had violated the employee’s rights under the Code, it turned to the issue of remedies. The Tribunal’s remedial authority under s. 45.2(1) of the Code includes the power to order monetary compensation for loss, including compensation for injury to dignity, feelings and self-respect.
The Tribunal explained that:
“An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. [T]he factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.”
The Tribunal also noted that, while the quantum of damages for loss should not be set too low, which would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate, its remedial powers are not punitive in nature. Thus, the purpose of ordering compensation is to restore the applicant to the position he or she would have been in had the discrimination or harassment not occurred. An intention to discriminate or harass on the part of the respondent is not required.
In assessing the award, the Tribunal stated that factors to be considered include:
- the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
- the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
- the complainant’s vulnerability;
- objections to the offensive conduct;
- the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;
- the degree of anxiety the conduct caused; and
- the frequency and intensity of the conduct.
In this case, the Tribunal characterized the conduct the employee was subjected to as “among the most serious and egregious ever brought before this Tribunal.” It noted that what occurred “encompasses virtually the entire spectrum or continuum of sexually harassing behaviour in the workplace, necessitating a significant award of compensation.”
Having reviewed the relevant factors, including the overall seriousness of the supervisor’s Code-related mistreatment of the employee and the employee’s individual circumstances, the Tribunal awarded the employee $170,000 as compensation for injury to dignity, feelings and self-respect.
If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.
I have extensive experience and knowledge in handling cases on behalf of employees in a variety of industries. If you have been the victim of harassment and discrimination, I can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered.
At Peter A. McSherry Law Office in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mailing me. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.