Workplace Sexual Harassment: When the Customer or Shareholder isn’t Always Right

Written on behalf of Peter McSherry
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This fall will mark five years since the widespread adoption of the #MeToo movement around the world. Awareness and recognition of the harms of sexual harassment and misconduct in the workplace have dramatically increased during that time. We have previously written about sexual harassment cases in the wake of the #MeToo movement on February 4, 2021 and March 18, 2021.

One aspect of this behaviour that we’ve come to know more about is the fact that workplace harassment and workplace sexual harassment in particular is not always something done by an employee’s manager. Increasingly, courts and human rights tribunals are finding employer liability when there is a failure to sufficiently address discriminatory conduct in the workplace by non-managerial persons including peers, customers, and contractors.

Shareholders addressed for discriminatory comments at annual general meeting

Aviva Insurance made headlines around the world after a recent shareholder meeting. The chair of the company reportedly pushed back on shareholders who subjected female executives to discriminatory remarks like you’re “not the right man for the job” and she should be “wearing trousers”. While pressing executives is a shareholder’s right, using sexist tropes to do so can be damaging to the corporate culture, make talent retention challenging, and potentially expose the company to reputational risk and legal liability.

In response to these comments and others like it, at the conclusion of the meeting, the Aviva chair addressed attendees as follows:

I’m not going to say thank you to everyone for your comments, because I think there were some comments in that session that were simply inappropriate and I do not expect and would [not] want to hear at any future AGM.

While these types of comments addressing shareholders are not typical, leaders experiencing similar situations may want to consider how to address these issues knowing that harassing or discriminatory remarks to employees have their own risks.

The Ontario Human Rights Commission confirms employer obligations to ensure workplaces are free of discrimination

The Ontario Human Rights Commission (the “Commission”) is the Ontario government agency tasked with advancing human rights in the province (this is separate from the Ontario Human Rights Tribunal, which adjudicates human rights disputes).

In a recent policy position paper, the Commission addressed the employer’s role in the workplace when it comes to sexual harassment and discrimination. Of course, employers are prohibited from engaging in sexual harassment and discrimination, for example when a manager engages in unwanted sexual touching of a subordinate or makes a promotion conditional on a sexual relationship. However, employers can also be responsible for harassment or discrimination even when management does not engage in the conduct.

Employers are responsible for preventing sexual harassment in the workplace. Employers must also take steps to investigate complaints raised about this type of conduct and ensure steps are taken to address it and prevent recurrences. Here is what the Commission wrote about these obligations:

Employers that fail to prevent sexual harassment, or fail to respond when staff are subjected to unwanted comments or behaviour such as sexual remarks, requests for dates, or inappropriate touching, also contribute to a discriminatory work environment. Employers must make sure their workplaces are free of discrimination and harassment, or they may be liable for violating their employees’ human rights.

Ontario Human Rights Tribunal hears case involving peer-based sexual harassment

In Kaur v. 1865898, the Ontario Human Rights Tribunal heard a case involving alleged sexual harassment by a co-worker in the workplace and the company’s alleged failure to address it appropriately.

The employee, in this case, Ms. Kaur, was 26 years old and worked at the restaurant for three years at the time her employment was terminated. She started at the restaurant first as a dishwasher, then a food runner, and finally a server and bartender.

During the course of her employment, she alleges that her co-worker engaged in unwanted sexual attention including comments in the workplace, touching, changing his clothes in front of her, using a knife to unlock the women’s washroom where she changed, and watching pornography on his phone in front of her. She states she raised concerns with management and the only steps taken to address it were warning her to avoid the individual. As the behaviour escalated, Ms. Kaur reported the individual to the police. She alleges she experienced reprisal, was chastised for going to the police, and her employment was terminated.

Server brings sexual harassment claim to the Ontario Human Rights Tribunal

On the eve of the #MeToo movement’s rise in September of 2017, Ms. Kaur brought an application to the Ontario Human Rights Tribunal (the “Tribunal”). In the application, she alleges discrimination, harassment and a poisoned work environment because of sex, sexual harassment, and sexual solicitation and advances, as well as reprisal in employment contrary to the Ontario Human Rights Code.

The Tribunal heard oral testimony from Ms. Kaur, other colleagues (including the alleged harasser), and the owners of the restaurant. They also reviewed an email Ms. Kaur sent to management outlining her concerns with how she was being treated by her colleague. Here is an excerpt of the email:

I have been a continuous victim of harassment by Mr. Zaheer(Cook) throughout my shifts at Eat More Restaurant […] I have complained to you verbally many times about these Incidents. But every time you advised me to just ignore him, don’t interact with him and avoid him, which was not possible due to the nature of my job[…] Being not aware of my rights as a worker in Ontario, I have been compromising to harassment and suffered mental torture for many months.

The Tribunal determined on the balance of probabilities that the sexual harassment Ms. Kaur described had occurred. The Tribunal also determined that she had raised it to management, which had failed to meet its duty to investigate and address these sexual harassment complaints. As a result, the Tribunal held that Ms. Kaur was entitled to damages and awarded her $40,000 in compensation for injury to dignity, feelings and self-respect.

Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Sexual Harassment in the Workplace

The Ontario Human Rights Code prohibits discrimination and harassment based on gender and sex and requires employers to take steps to prevent and address occurrences of sexual harassment. If you are experiencing unwanted sexual comments or conduct in the workplace your rights may have been violated. Seeking the advice of an experienced and informed employment lawyer can help you understand your options to remedy the situation.

At Peter A. McSherry Employment Lawyer in Guelph, we provide each of our 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.