An update on Workplace Sexual Harassment Decisions

In recent months, there have been several noteworthy decisions from human rights tribunals across Canada on sexual harassment in the employment context. We explore those decisions below and provide key takeaways for Ontario employers. 

Employer Held Liable for Sexual Assault Committed Outside the Workplace

In A.B. v. 9405-2651 Quebec Inc., an employee working as a waitress alleged that her manager would frequently touch her inappropriately at work without her consent. On one occasion, the manager invited the employee and several colleagues to his cottage. While there, the manager kissed and touched the employee without her consent and forced her to perform sexual acts. The next day, the employee sent a text message to her manager that she was leaving work early, and he terminated her employment. The employee told the restaurant’s owner (who was the manager’s spouse) but she did not believe the employee. In finding for the employee, the Tribunal characterized the incidents that occurred as sexual harassment and sexual assault. Importantly, the Tribunal noted that while the sexual assault did not occur at the workplace or during working hours, Quebec’s Act respecting labour standards still applied, and that the employer-employee relationship was still present because the manger had invited the employees to his cottage. The Tribunal also noted that the employer did not have a sexual violence and harassment policy in place and had failed to prevent or stop the sexual harassment that was present in the workplace.

Landmark Damages Award for Sexual Harassment Against “Dismissive” Employer

More recently, in Yaschuk v. Emerson Electric Canada Limited, 2022, an employee alleged that she was sexually harassed and then bullied by her manager. The Tribunal noted that the manager sent a sexually-suggestive video to the employee, flirted with her, made suggestive comments about other women in the office, and engaged in conversation and joking of a sexual nature in the workplace. The Tribunal held that the incidents constituted sexual assessment and described the manager’s behaviour as “predatory.” The Tribunal found that the employer’s attitude was “dismissive and cavalier” and that its investigation was incomplete. Notably, the Tribunal awarded the employee general damages of $50,000.00 for pain and suffering and over $42,000.00 in lost wages.

Key Takeaways

These decisions have key takeaways for Ontario employers:

• First, employers should be aware that they may be liable for incidents – including but not limited to sexual harassment and sexual assault – that occur outside of the workplace and working hours where those incidents are related to the work.

• It is also important for employers to meet their obligations concerning workplace harassment by having a workplace violence and harassment policy in place and ensuring that it is implemented and consulted as required by the Ontario Occupational Health and Safety Act. These policies should be worded broadly so that they capture incidents that may take place away from the workplace and outside of working hours.

• Employers should also be mindful of how they treat complainants in workplace investigations and ensure that complaints are investigated fully.

If incidents of workplace sexual harassment are brought to your attention, or if you would like us to review or prepare a workplace violence and sexual harassment policy for your business, our team is ready to assist you.