Business Pays When They Fail to Take Sexual Harassment and Sexual Assault At Work Seriously

The case of S.E. v. 2474489 Ontario Inc. (o/a Opa! Souvlaki), 2024 HRTO 343, is a recent decision of the Human Rights Tribunal, where an employer was found in breach of the Ontario Human Rights Code (“Code”) on account of sexual harassment and assault perpetrated by an employee against another at work.

BACKGROUND

The applicant alleges that she experienced sexual harassment in employment, that the employer failed in its duty to investigate her complaints and further that the employer subjected her to a poisoned work environment.

The applicant was 21 years old at the time she worked at a restaurant.  The applicant alleged harassing conduct instigated by a specific co-worker, which included unwelcome and inappropriate comments, questions and jokes and sexual requests. The behaviors escalated, and the co-worker became physical with the applicant.

The restaurant did not investigate the applicant’s complaints and  instead, offered to move the applicant to another location, which would have meant that the applicant would have to go weeks without income. Further, the perpetrator was assigned as a manager of the new location once it opened.

The applicant felt increasingly unsafe going to work, and occasionally did not attend her shift. She eventually had no choice but to find a new job, given her need to contribute to her family’s income.

LAW

In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at p. 1284, the Supreme Court of Canada broadly defined sexual harassment in the workplace as:

[…] unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment[…]

Furthermore, the Ontario Human Rights Code provides the right to equal treatment with respect to employment without discrimination because of sex, gender identity, and provides freedom from harassment in the workplace on a number of grounds.[1]

Employers have a duty to ensure that workplaces are free of discrimination and harassment contrary to the Code. Human rights caselaw has established that an employer has a duty to investigate allegations of discrimination in the workplace, as part of its obligations under section 5(1) of the Code.

Furthermore, a poisoned work environment will be found if there has been a particularly egregious, stand-alone incident, or if there has been serious wrongful behavior sufficient to create a hostile or intolerable work environment that is persistent or repeated.

FINDING

The Tribunal found that  the applicant was not provided with a safe workplace and was instead required to work in an environment rife with discrimination based on sex, sexual harassment, solicitations and advances.  The business and co-worker breached their obligation to prevent the applicant from having to work in a poisoned work environment contrary to section 5(1) of the Code, and reprised against the applicant, contrary to section 8 of the Code.

The applicant was awarded $35,000 in compensation, for injury to dignity, feelings and self-respect resulting from the poisoned work environment, failure to investigate, and reprisal, in addition to compensation for loss of income.

TAKEAWAY

The Ontario Human Rights Code provides protections for workers from sexual harassment and from a “poisoned” work environment. An employer’s failure to investigate sexual assault and harassment claims can lead to serious consequences for businesses that refuse to take these complaints seriously.

[1] See sections 5(1), 7(2) and 7(3) of the Code