The prevalence of sexual harassment in Canada has been a hot topic of discussion since the Jian Ghomeshi story broke. There has also been significant analysis on why those who experience sexual harassment do not report it. Missing from this conversation, however, are suggestions on how to reduce harassment and increase the reporting rate.
As employment lawyers who represent both employees and employers here are our recommendations:
Require Employers to Develop and Post a Human Rights Policy, Train All Employees on Human Rights and Implement a Complaint Process
Sexual harassment is an affront to a person’s dignity and self-respect. It is also bad for business because harassment can result in lower employee productivity and higher rates of employee absence and illness. It is, therefore, in the interest of both society and employers to actively discourage harassment, including sexual harassment, in the workplace.
Employers are already required to implement various workplace policies and workplace training. For example, in Ontario, employers are required to prepare and post a health and safety policy and there is mandatory training under health and safety legislation. However, for human rights, creating and posting a policy is optional, as is training. Voluntary compliance does not seem to be working. We, therefore, recommend that the Ontario Human Rights Code (“the Code”) be amended to include similar obligations on employers regarding policies and training.
Where there is a right there should be a remedy. A person who has been harassed should have the right to file a complaint with her employer and obtain redress. Although the Code does not mandate a complaint procedure, failing to adequately investigate can result in higher additional damages. This has been interpreted to mean that the employer must take the complaint seriously, respond promptly and sensitively, ensure the accused is provided details of the allegations and an opportunity to respond, and provide both the accused and the accuser with the outcome of any investigation and the employer’s proposed remedy. Given how few women report sexual harassment, we recommend that the Code be amended to include a mandatory investigation process that includes these elements.
Changes to the Human Rights Complaint Process under the Canadian Human Rights Act
Employees who work for federally regulated entities like Crown Corporations, banks and airlines, can file a sexual harassment complaint under the antiquated Canadian Human Rights Act (“the Act”). We believe it should be updated, just as the Ontario equivalent was in 2008.
Prior to 2008, the Ontario Human Rights Commission would vet human rights applications. Now an employee has the right to take their case directly to the Human Rights Tribunal of Ontario and to a hearing. Federally, complaints are still vetted by the Canadian Human Rights Commission. In 2013, only 96 complaints were referred to the Canadian Human Rights Tribunal under this legislation. We believe that the changes in the Ontario system should be mirrored in the federal system. Similarly, we recommend that the Tribunal website should include a downloadable, clear, online complaint form that can be submitted electronically, as the Ontario Tribunal does.
In addition, a federal employee cannot claim a violation of the Act in a wrongful dismissal action. This means a person who has been sexually harassed must bring two separate legal proceedings. This is costly and time consuming. We recommend that the Act be amended to allow an employee to add a human rights complaint to a wrongful dismissal action to increase ease and expediency for applicants. Finally, damages are capped at $40,000 regardless of how egregious the violation. We recommend eliminating this cap.
Increases on General Damage Awards
Subject to any cap in the applicable legislation, human rights adjudicators have the power to decide how much an employer is required to pay an employee who is sexually harassed.
General damages for most sexual harassment cases are less than $15,000. Damages of $1,000 have been awarded in cases where graphic language was directed to a woman such as asking her whether she liked “sex from the front or doggy” or telling her she “has nice tits”. After filing a complaint, an employee must attend a three-hour mediation, compile and disclose documents to the employer, and attend a hearing where she is often subject to aggressive cross-examination including questions about whether she somehow encouraged the sexual banter.
If an employee believes that she will likely only receive $1,000, she may feel that going through this difficult and time consuming process is not worth it. Increasing the general damage awards, in some cases, would encourage employer engagement in preventing sexual harassment and increase the likelihood that employees would report incidents and pursue their legal rights, if necessary.
If you believe that you have experienced sexual harassment in the workplace, you should seek legal advice. Please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).
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