Sexual Harassment: A Classic ‘He Said vs. She Said’ Case

In 2015, the Ontario Human Rights Tribunal considered the case of a self-employed sales agent claiming she quit her job because the broker sexually harassed her. The broker claims he did not harass her and she quit because she was not earning much income. It is a classic he said/she said situation

She Says

The broker made a comment about the lipstick the sales agent was wearing and remarked on how well she looked. She says he hugged her on a number of occasions. While she was typing out a letter one day, she says he stood behind her and caressed her hair. She says she told the broker that his attentions were unwelcome and that he should stop treating her in this way. She says she sought medical help to deal with mental health conditions caused by the broker’s actions.

He Says

He mentored several agents and office staff.  He described his style as casual and friendly. He admitted making comments that he considered friendly and supportive, such as telling people they looked nice. He says he paid the sales agent compliments and tried to boost her confidence and this is something he did for all the agents. He denied that the applicant ever told him that anything he was doing made her uncomfortable. On one occasion the sales agent initiated a hug with him in gratitude for loaning her some money. On another occasion, after he successfully resolved an allegation of fraud against her in connection with a real estate deal he told her that he deserved a hug (or words to that effect). Another time he admitted he may have put a hand on her shoulder for 5 seconds but denies touching or caressing her hair.

Findings of Fact

The adjudicator concluded the sales agent could prove two of the allegations against the broker; that is (i) the broker hugged her after suggesting he deserved a hug for assisting her in resolving the fraud allegation against her; and (ii) the broker admitted he may have touched the sales agents shoulder for 5 seconds when she was typing a letter.

The adjudicator did not find that the sales agent told the broker his attentions were unwelcome but concluded that he ought reasonably to have known that persistent comments about the physical attributes of the people working with him and for him were unwelcome.

The adjudicator concluded that the sales agent did not prove that she sought medical help as a result of the alleged sexual harassment.

Decision

The broker and brokerage were ordered to pay the sales agent $ 15 000 for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. In addition, the brokerage was ordered to implement a policy on preventing and addressing sexual harassment in the workplace.

Lessons to Be Learned:

1. Self-employed persons can file an application under the Ontario Human Rights Code.
2. A person who is subject to sexual harassment is not required to object to the harassment; the test is whether a reasonable person ought to have known the comment or conduct was unwelcome.
3. If you are a friendly and tactile person who is a hugger then you should make sure your interactions with others at work is welcome; otherwise you may be subject to a sexual harassment complaint.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship including the law of sexual harassment. If you have any questions, you can contact him at 416 317-9894 or at [email protected]