New High Water Mark for Human Rights Sexual Harassment Awards
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Written on behalf of Peter McSherry
There are several further principles which have emerged as guide posts for the determination of fair damage awards for emotional harm and injured feelings in human rights sexual harassment cases.
Setting the Award for Compensatory Damages – Sexual Harassment
It has been generally accepted that the awards made in sexual harassment cases should be higher than usual comparable human rights compensatory awards due to the likelihood of more severe personal consequences and the inherent vulnerability of the victim. The unstated reason may be that the conduct is clearly intentional, for personal gratification, and often in an abusive relationship with an inherent power imbalance. It is unlike the usual human rights violation.
Factors of Influence
The factors which have been determined to be influential in shaping the sum to be awarded for emotional harm in a sexual harassment case have been stated to be as follows:
- the nature of the harassment, that is, was it simply verbal or was it physical as well;
- the degree of aggressiveness and physical contact in the harassment;
- the ongoing nature, that is, the time period of the harassment;
- its frequency;
- the age of the victim;
- the vulnerability of the victim; and
- the psychological impact of the harassment upon the victim.
It has been noted that the manner in which the employer has responded to the claim should be a factor in determining the quantum of the sum to be awarded as compensation. In addition the existence of a harassment policy and its enforcement will also be considered in this context. There is no punitive component to the award.
The fact that the incident may be an isolated occasion and was pre-meditated and no medical evidence was led, may all be factors in reducing the size of the award.
Certainly medical evidence will be preferred and will likely allow for a more generous damage assessment, but it is not mandatory to prove the degree of emotional trauma suffered by the applicant.
Range of Damage Awards
The modern damage awards for injured feelings for sexual harassment tend to cluster in the range of $20,000 to $25,000. The broad spectrum has been noted to be from $12,000 to $50,000. The award may be impacted if there was a retaliation, which may or may not be considered as an independent award for reprisal. The award has also been influenced by whether the victim suffered a loss of employment, notwithstanding that this may lead to a discrete claim.
Prior High Water Mark
The highest award, prior to the most recent decision, had been $150,000[1] to one complainant and $50,000 to a second in particularly unattractive fact situations.
Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The women faced not only loss of employment, but loss of a residence and the right to remain in Canada.
The tribunal found the conduct to be unprecedented. The second victim, 22 years old, was required to leave Canada and return to Mexico.
Singer Shoes – $200,000 Award
The most recent decision of the Tribunal[2] has awarded the sum of $200,000 as compensatory damages. The applicant was employed with the company for some 29 years and resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.
She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The Tribunal, as noted, awarded $200,000 against the owner of the business personally and against the company.
Let Legal Advice Guide Your Steps
Not every case will allow for such sums to be awarded. There are also other human rights remedies for lost income, reinstatement and an award of future lost income where reinstatement is not awarded. Also not every case will give rise to employer liability. Civil cases may sometimes may be more appropriate. Get advice first.
If you are an employee seeking legal advice in this situation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.
[1] Tribunal (Hart) in O.P.T. and M.P.T v Presteve Foods Ltd. and Pratas
