HANDS OFF, OR CRIMINAL CHARGES COULD APPLY
Sexual assault victim can take tougher action outside the workplace, Howard Levitt writes.
As the aftermath of Harvey Weinstein continues its global reverberations, few have commented on its criminal aspects. Employee miscreants often operate under the misapprehension that their workplace misdeeds will be lightly punished. They believe that dismissal is the worst possible outcome, but the consequences are much nastier than they imagine.
H.R., a 21-year-old woman, reported directly to Mr. P. as a front desk employee (the names were redacted as it is a criminal trial). P., a man in his late 40s, routinely made comments to her — replete with sexual innuendo. He commented on her breasts, her backside, and declared that he wanted to bend her over the desk. He didn’t stop there. He tickled her, smacked her backside and even kicked it. At least once P. opened her blouse and peered down at her breasts. H.R. objected. He continued.
On P.’s direction, H.R. accompanied him to a motel room to check for damage after guests had left. He sat on the bed, pulled her onto his lap and tried to grope her. Desperate for him to stop, H.R. reminded P. that the workplace had video cameras. Unfazed, P. told her that he “controlled” the video recordings.
On another occasion, P. grabbed H.R. by the torso and onto his lap. He slid his hand up her skirt as he wanted to “see if she was wearing underwear.” At another time, he asked her for a hug, during which he kissed her cheek, slid his hand across her chest and fondled her breasts.
H.R. complained to her manager. Her plea fell on deaf ears. P. continued unabated, so eventually H.R. went to the police. P. was charged by the police and then terminated. But his termination was not nearly the worst of it.
P. was tried criminally. He pleaded guilty to two offences of sexual assault and sentenced to eight months to be served as a conditional sentence by a Nova Scotia court. H.R. and another female employee testified about his sexual misconduct.
For higher-ranking employees subjecting their subordinates to sexual assault and harassment, the consequences can span far beyond termination, personal civil liability or a human rights complaint — straight to criminal prosecution. They will be more heavily punished if they’re in a position of trust or authority in relation to their accusers.
For employers suspecting sexual harassment happening in their workplace, work with a lawyer to create a zerotolerance harassment policy and distribute it widely to employ- ees and management. If a complaint has been received from an employee, get advice, investigate immediately and record outcomes; maintain a file of the investigation to decrease liability and to assist in litigation, including a potential criminal investigation.
Employers face broad moral and ethical obligations to identify and report criminal conduct in the workplace to the police and to assist the criminal investigations of their employees. Sometimes a criminal complaint to the police is precisely the strategically most appropriate message. For those employees who believe the workplace carries fewer consequences than the real world, reconsider.
Financial Post Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p.m. on Newstalk 1010 in Toronto. hlevitt@levittllp.com Twitter.com/HowardLevittLaw
Employers face broad moral and ethical obligations to identify and report criminal conduct in the workplace to the police and to assist the criminal investigations of their employees.