The #MeToo movement has attracted considerable attention to sexual harassment in the workplace, especially the power dynamics inherent when a superior makes an advance towards a junior employee.
Workplace sexual harassment, as defined by the Supreme Court of Canada, is a form of discrimination on the basis of sex. It includes any “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.” Sexual harassment can include comments and/or physical contact of a sexual nature, solicitation, sexual propositions, retaliation due to the rejection of sexual advances. Sexual harassment can occur both inside the workplace and outside of it, at company retreats, holiday parties, online, and all other environments in which colleagues interact.
What are the Remedies Available to #MeToo Victims of Workplace Sexual Harassment?
Option #1: Internal Workplace Mechanisms:
The first step is to make the sexual harassment known. Most employers in Ontario are legally required to have sexual harassment policies that provide methods of reporting harassing conduct. The policies must provide alternative reporting mechanisms in situations where the accused is a manager or the individual responsible for workplace sexual harassment investigations. Employers also have a duty to keep all information confidential, and only disclose information as may be necessary for investigating the complaint.
Option #2 Quit and Seek Legal Remedies:
Unfortunately, employees often quit after experiencing sexual harassment due to fear of retaliation and/or the long, emotional nature of the reporting process. This commonality among sexual harassment victims has led to the #MeToo movement.
Although an employee’s decision to quit may seem voluntary, employees are frequently forced to resign due to a toxic workplace or emotional distress. In these cases, the resignation is not truly voluntary. Employees in these situations could quit, but also sue for constructive dismissal. A constructive dismissal occurs when an employee resigns from his or her position involuntarily and claims the same severance package that he or she would be entitled to in the event of actual termination of employment.
Constructive dismissal claims are usually pursued through a civil claim in court. Courts may award victims a severance package for being forced to quit as a result of workplace sexual harassment, which is an estimate of the earnings that the employee would have been made over the time it takes to find comparable employment. In addition, courts may award aggravated damages for mental distress caused by workplace sexual harassment. In rare cases, punitive damages are awarded for extremely offensive acts.
Another option is to pursue remedies through the Human Rights Tribunal of Ontario. Since falling victim to workplace sexual harassment is a form of discrimination based on sex, human rights law applies. Successful applications to the Human Rights Tribunal will result in compensation for injury to dignity and self-respect. Special damages may also be awarded to compensate for the loss of employment due to quitting in an effort to relieve yourself from workplace sexual harassment.
Overall, it is best to consult with an experienced lawyer that specializes in workplace sexual harassment. Whitten and Lublin have a team of experienced employment lawyers that will consult you on the best avenue to pursue, and assess the cost-benefit advantages while considering the difficulty a victim may face relative to the setting.