Despite a number of legislative initiatives that are intended to reduce and ultimately eliminate sexual harassment in society, sexual harassment continues to be a problem in Ontario’s workplaces.
One of the more nuanced areas of sexual harassment law is what kind of language a male can direct towards a woman in the workplace. Sometimes there is a fine line between complimenting a female co-worker and sexually harassing her.
An occasional non-sexualized compliment is usually not a problem but a comment of a sexual nature or a series of comments can constitute sexual harassment.
In this blog using facts from Ontario Human Rights Tribunal (“the Tribunal”) cases, I will try to identify the parameters of acceptable and non-acceptable comments.
What compliments are acceptable?
Some compliments are the sort of innocuous comments which are common in all workplaces and do not amount to sexual harassment. For example, the Tribunal found in Eldary v. Songbirds Montessori School Inc., 2011 HRTO 1026 that telling an employee that she has nice hair or complimenting her shoes or clothes on its own does not constitute a violation of the Ontario Human Rights Code (“Code”).
If however a person makes too many compliments they can create a different effect on the person receiving the compliments. One case described compliments made by an owner to a number of female staff who felt it was “creepy if a man is always hitting on us”. In Panucci v. Seller’s Choice Stockdale Realty Ltd., 2015 HRTO 1579 the employer admitted that he often called people “beautiful”, would suggest to people that they “go on a cruise together” and would comment on their lipstick. The employer asked employees to spend more time with him, drink wine with him, and give him hugs. He also made comments that he considered friendly and supportive, such as telling people they looked nice. The Tribunal ruled that even though the employer viewed his comments in a “benign and positive light”, regardless of whether he was told the comments were unwelcome, he ought reasonably to have known that the persistent comments about the physical attributes of the people working with him were unwelcome.
What comments are unacceptable?
In Romano v. 1577118 Ontario Inc., 2008 HRTO 9 a waitress resigned and when she later returned to pick up her final pay, the owner threw her pay on the bar and asked her how she liked to have sex, “from the front or doggy style”. For this comment the owner was ordered to pay her $1000 in damages.
In Dix v. The Twenty Theatre Company, 2017 HRTO 394 the following text exchange resulted in a $ 1500 damage award:
Board member: Your pics (which she posted on social media) look great! That dress was awesome
Female: Thanks! Ha thank you, I don’t dress up often, I’m more of a jeans girl.
Board member: Well I’m sure you look lovely in anything but the dress and heels were very elegant and hot 😉
Female: Lol well thank you
Board member: I am looking forward to you coming out with the shorter dress like you said last night hehehe
The following comment in Lee v. NCR Leasing Inc. o/a Aaron’s Stores, 2016 HRTO 1440 was found to constitute sexual harassment and the Tribunal awarded $3000 in damages:
A female asked her male manager to explain the summer wardrobe policy for women, since she wondered if it would be permitted for her to wear capri pants. He told her that the “shorter the skirt the better and show cleavage”.
It is also important to note that damages are considerably higher for cases involving sexual solicitation. In Anderson v. Law Help Ltd., 2016 HRTO 1683 there were several sexual and non-sexual text messages exchanged between the employer and the employee including the following:
Joe: Did you think about what we talked about?
Me: I did last time I talked to someone I found out late that they lived with their woman and kids and it was a really dramatic experience. I just feel like I would be falling into the same situation again
Joe: I do NOT know why you think negative
Me: It’s not even like that. I just try to learn from my past. There’s nothing worse than repeating history
Joe: ok no problem, I am not going to try anything anymore, but it’s a mistake you are making
Me: If I’m making a mistake I guess time will tell. Your a cool guy I just don’t want to cross a line that could be potentially problematic for both of us
Joe: it is NOT for both of us, this is your decision alone
Joe: if I end up with someone else then this option is no longer available
The Tribunal awarded the Applicant $22,000 in general damages. This case is an example of how solicitation from an employer, even where not accompanied by sexualized language, can constitute a violation of the Code.
Lessons to Be Learned:
- A single comment of a sexual nature can amount to sexual harassment
- An employee has one year from the last act of sexual harassment to file a complaint under the Ontario Human Rights Code
- An employee can file a sexual harassment complaint against a member of the employer’s Board of Directors
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
Our last blog discussed new amendments to the Canada Labour Code (“the Code”) that came into force on September 1st. Employers cannot rest just yet - even bigger changes are expected to arrive in 2020 in relation to workplace harassment and violence. The Code applies...
Federally regulated employers should be aware that various changes to the Canada Labour Code are set to be in place as of September 1st, 2019. As this date is quickly approaching, it is vital that employers familiarize themselves with these amendments and begin...