Sexual Harassment and Assault at Work: Options for Legal Redress – Part 2

Sexual Harassment and Assault at Work: Options for Legal Redress

Photo by Mihai Surdu on Unsplash

Introduction – Part II

During Part I of this blog, we outlined three initial legal options for survivors of sexual assault and/or harassment in the workplace context. These included filing a workplace complaint, filing a grievance if you are in a unionized setting, or submitting an application to the Human Rights Tribunal of Ontario (HRTO). Here, we continue to outline the remaining three options for legal redress in this context. 

Asserting a Constructive Dismissal

Per Ontario’s Occupational Health and Safety Act, your employer is responsible for ensuring a safe, harassment-free work environment. If you resign from your employment you typically will not be entitled to any compensation from your employer. If you are terminated, you will typically be entitled to notice of termination – colloquially known as a “severance package”. However, the law has carved out an exception in circumstances where the employer’s conduct has been so bad that you essentially have no choice but to quit. This is called a “constructive dismissal.’” Depending on the facts of each case, asserting a successful constructive dismissal claim could result in a damages (compensation) award comparable to what you would have been entitled to had you been terminated. If your constructive dismissal arose out of the context of being sexually harassed or assaulted at work, you may also be entitled to additional forms of compensation including human rights or general damages. 

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Sexual Harassment and Assault at Work: Options for Legal Redress – Part I

Sexual Harassment and Assault at Work: Options for Legal Redress

Photo by Mihai Surdu on Unsplash

Introduction – Part I

In the wake of the #MeToo era, a burgeoning consciousness has grown around the existence of and need to address sexual harassment and sexual assault in the workplace. Individuals of all genders and orientations have found the courage to come forward, and legislation in Ontario has made it mandatory for employers to sufficiently investigate these allegations in a timely and comprehensive manner. Trauma-informed Workplace Investigations inherently require a sound understanding of power dynamics and nuanced forms of sexual harassment. New hybrid work models pose unique obstacles for enforcing cyber-bullying and anti-discrimination/harassment policies, and have brought to the forefront the importance of building a workforce predicated on respect, plurality, accountability, legal compliance, and employee well-being. As part of this, employees who experience sexual assault and/or harassment in the workplace may have different legal options at their disposal. 

In Part 1, we begin here with a  review of three possible options. 

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ONCA upholds employer for-cause termination for sexual harassment

Overview

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.  

Background

A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:

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Workplace Harassment: the Employer’s Duty

Occupational health and safety legislation in Ontario protects workers from the risk and harm of harassment at work. Under the Occupational Health and Safety Act (OHSA) employers have a legal duty to guard against and correct workplace harassment no matter how small the team. 

Here are some things to keep in mind regarding workplace safety and the employer’s obligations. 

Harassment Can Go By Many Names

Bullying is harassment. Employees sometimes think that the form of harassment they are facing is less serious than the harassment that OHSA targets. But any euphemism for harassment, like bullying or mocking, doesn’t make it less harmful to workplace health and safety. Even lighthearted bullying can count as harassment under OHSA and the employer will have a duty to prevent and act on it. OHSA says that:

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Romance in the Workplace

SpringLaw's Lisa Stam joined ADP's Jeff Livingstone, host of the Insights@Work podcast for a conversation about romance in the workplace. As Jeff explains, "When professional and personal lives co-mingle, it’s only natural that romantic work relationships happen.  While merging romance and work might sound like an ideal situation, navigating office politics and HR policies present their own pitfalls." Lisa and Jeff discuss the very important considerations for employers such as ensuring there are clear policies,…

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New Federal Anti-Workplace Violence and Harassment Requirements

workplace violence and harassment

Photo by Andrea Piacquadio from Pexels

When it comes to workplace violence and prevention, the federal government has been playing catch up with the provinces. Starting in 2017, the feds have been working on amendments to the Canada Labour Code (CLC) to more fully address workplace violence and harassment. While Bill-65 – snappily named An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 – establishing the amendments was passed in 2018, the changes had not come into effect nor had a date for their coming into effect been announced. New regulations were announced on June 24, 2020, which provide employers with more details regarding what will be required of them and setting out an effective date of January 1, 2021, for the changes. There are also requirements that employers need to meet before January 1, 2021. More details can be found on the government site here.  

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