Harassment penalties already rising
The #MeToo movement has already created not only heightened awareness but increasing penalties and civil compensation.
Last year saw legislative changes with Ontario’s Occupational Health and Safety Act expressly requiring workplace harassment policies to include sexual harassment.
The province’s workers’ compensation legislation added benefits for workers suffering from workplace “chronic mental stress,” one effect of sexual harassment. This is a mixed blessing as those qualifying for workers’ compensation are barred from civil claims for harassment, intentional infliction of mental suffering and constructive dismissal based on a poisoned workplace — claims attracting much higher damages than payments from the Workplace Safety and Insurance Board (WSIB). In addition, if workers’ compensation covers the mental stress caused by a sexual predator and the employer that permitted the misconduct to occur, the perpetrators will escape both liability and meaningful accountability through the public exposure of civil litigation. For that reason, I anticipate employers and perpetrators increasingly raising workers’ compensation as a defence.
And, there are plans to amend the Canada Labour Code to impose a duty on federally regulated employers to investigate sexual harassment, provide employees (including management) training in its prevention and ensure that the manager receiving complaints is knowledgeable, trained and experienced. The training will dispel widespread confusion as to the standard of proof in workplace harassment. These investigations are to determine guilt based upon which version of events is more likely, not on the basis of the criminal standard of proof (beyond any reasonable doubt), thereby providing more likely recourse for victims of predation.
We have also seen significantly higher damages awards from the Ontario Human Rights Tribunal. Historically, such damages for pain and suffering have been in the range of $5,000 to $25,000. Two cases have escalated that considerably.
In one, the Human Rights Tribunal awarded A.B. (initials used to protect the identity of the employee) $200,000 for injury to dignity, feelings and selfrespect (the human rights version of damages for pain and suffering). A.B. was sexually harassed, sexually assaulted and subjected to racial discrimination over 20 years by Paul Singer of Joe Singer Shoes, who was also her landlord. Although the facts were unusual, it showed the tribunal is prepared to award court-like damages in particularly egregious cases.
In the second case, the tribunal awarded damages to G.M., a 15-year-old unpaid intern, for injury to her dignity, feelings and self-respect caused by a sexual assault by F.G., an employee of X Tattoo Parlour. Aggravating factors were G.M.’s age and that F.G. was a trusted family friend. The tribunal awarded G.M. the full $75,000 in damages that she had sought and might have granted a larger award had she requested one.
Technology and law enforcement industries are also facing increased scrutiny. In November, more than 20,000 Google employees walked out to protest the US$90 million payout to Andy Rubin, forced to step down after coercing a female subordinate into oral sex. There has been increasing exposure of the tech industry as a comparative bastion of harassment.
We have also recently had female police officers in various Canadian forces citing egregious acts of sexual harassment by fellow officers. That is troubling insofar as women victimized by sexual predation are supposed to be able to turn to the police. But the new statutory developments and an increasing tendency to turn to civil courts for relief should cause a sea of change in the recourse victims take.
With a public and judiciary increasingly attuned to the prevalence of sexual harassment in our workplaces, I expect 2019 to bring increasingly high judicial and human rights awards. Women will increasingly forsake the criminal justice system for the more lucrative civil one.