'There's no consistency on how these kinds of damages are awarded - it truly is luck of the draw'
The CEO of a small company is personally liable for more than $16,000 in damages for sexual harassment, discrimination, and a poisoned work environment to which he subjected a worker over a few days of employment.
“A larger employer would hopefully have proper policies and procedures in place, so an employee who's subjected to sexual harassment understands what to do and who to talk to,” says Mackenzie Irwin, a senior associate at Samfiru Tumarkin in Toronto and Ottawa. “A smaller employer may not have as robust of a policy or procedure in place, but that doesn't necessarily mean that it’s more or less liable for things like this.”
The worker applied for an executive assistant position at Shared Work Space, a company providing warehouse and communal office space in Mississauga, Ont., in September 2020 when she was 22 years old. The interview took place on Sept. 25.
There were few people in the main office when the worker met with the founder and CEO. According to the worker, the CEO warned her about a client who would try to sexually intimidate her and try to have sex with her because she was pretty. The worker brushed the comment off and accepted the job offer.
On Sept. 28, the worker met with the CEO to receive an offer letter and employment contract. It was only the two of them, with no human resources representative present.
The employment contract described the job title as “personal assistant to the CEO” and listed the duties, which included “acting as a first point of contact” and “controlling access to the CEO.” However, the worker found that her role and responsibilities weren’t clear and she wasn’t given much work.
Explicit photos of co-worker
The CEO asked the worker to join him for lunch, during which he said that a co-worker’s previous job was being a nude model. He showed her explicit photos of the co-worker that he said he found on the internet and, when they returned to the office, he asked the worker to prepare a termination letter for the co-worker.
The co-worker wasn’t happy and yelled at the CEO before she left. She also gave the worker a note saying to call her if the CEO made sexual advances towards her.
After the co-worker left, the CEO took the worker to a second office, which she described as “more of a chill spot with couches and a television set.” They watched a movie and talked, until the CEO got up and sat directly behind the worker, commenting that she was “uptight” and she should “get more comfortable.” The CEO asked the worker for a hug, but she declined.
On Sept. 29, the CEO asked the worker to come to the mall to shop for work clothing that “accentuated her body.” At the mall, he asked her try on the clothing so he could give her his opinion, but the worker said she was uncomfortable. The CEO suggested she try them on back at the office, so the worker opted to try some things on at the store. According to the worker, the CEO complimented her on her physical appearance while trying clothes on, which made her more uncomfortable. She purchased about $500 worth of clothing.
Discomfort with personal questions
They went to the secondary office and the CEO asked the worker questions about her personal life, such as whether she had a boyfriend or had been raped. The worker said she was uncomfortable with the questions, but the CEO said it was so they could have a stronger relationship.
On Sept. 30, the worker returned some of the clothing she had bought, but the CEO e-transferred her $500.
On Oct. 1, the worker texted her mother that the CEO wanted to take things “to a more personal relationship,” so she wasn’t coming back to work.
However, the worker came to the office on Oct. 2 and the CEO asked if he could kiss her on the cheek. She declined, and he then asked her to move furniture in the warehouse when she wasn’t wearing proper shoes. She also wasn’t given any office work, leaving her nothing to do for four hours. She viewed this as punishment for refusing the kiss, so she drafted a resignation letter and looked for other jobs online.
Later that day, the worker told the CEO that she needed time off work because she had been exposed to COVID-19. She left the office and never returned, emailing her resignation letter on Oct. 14. The letter stated that she was resigning “due to circumstances of sexual harassment in the workplace from the date of my interview and continuously until the last day that I was present in the office.”
According to the worker, the harassment impacted her significantly and she found it challenging to find a new job. Her mother reported that she was “moody and less engaged.”
Sexual harassment, discrimination complaint
The worker filed a human rights complaint against the CEO and the company, alleging discrimination, sexual harassment, and reprisal in employment on the basis of sex, sexual solicitation or advances, plus a poisoned work environment.
The Ontario Human Rights Tribunal found that the CEO’s behaviour, including showing the worker an explicit photograph of a co-worker, inviting her to watch a movie in a private office space, suggesting a personal relationship, and requesting a hug and a kiss, was unwelcome and occurred within the workplace. This met the requirements for sexual harassment under ss. 7(2) of the Ontario Human Rights Code, as the CEO knew or ought reasonably to have known that his conduct was unwelcome, said the tribunal.
The tribunal also accepted the worker’s evidence that the CEO’s conduct made her feel uncomfortable and demeaned, and the pattern of behaviour created a poisoned workplace for her.
A factor that the tribunal considered was that there was no sexual touching, so the tribunal put it at the lower end of the sexual harassment spectrum, says Irwin.
“Sexual touching would be a more egregious violation, but the [worker] wasn't touched, even though the rest of the harassment happened,” she says. “And [the worker] mentioned that when she rejected [the CEO], he accepted her rejection and didn't force himself on her - it was interesting to see the tribunal say that this was a factor towards a lower award.”
“Just because it didn't go to that level doesn't mean that it wasn’t egregious and something that the tribunal should be interested in eliminating from the workplace,” adds Irwin.
No reprisal
The tribunal rejected the worker’s claims related to reprisal, as the evidence wasn’t sufficient to show that she was punished for rejecting the CEO’s advances other than her own perspective.
However, despite the finding of harassment against the CEO, the tribunal dismissed allegations against Shared Work Space Inc., as no legal entity by that name existed. The worker had mistakenly made her claim against “Shared Workspace Incorporation” and she also misidentified the company’s address. The worker was given the option to amend the name of the company to ensure it received the notice of hearing, but she chose just to proceed against the CEO personally.
“The problem is that the tribunal is so backlogged and slow that it took four years to get to a hearing, so why would you want to take a step back and potentially restart the process with the proper corporate respondent name?” says Irwin. “But eliminating her claim against the [company] took away her claim for lost wages – which could have been over four years of wages owed to her by the company.”
The tribunal ordered the CEO to personally pay the worker $16,500 in damages for injury to dignity, feelings, and self-respect, including pay for time worked and two weeks’ severance pay.
Sexual harassment damages
There's a variety of factors that the tribunals typically consider when they are awarding damages for sexual harassment, according to Irwin.
“The [tribunal] determined that this [worker] didn't feel as trapped in the job as in other scenarios, to justify damages in a lower range,” she says. “But the reality is that there's a large variety of damage awards from the tribunal, and it truly is luck of the draw in terms of what vice-chair you get and how the evidence comes across - there's no consistency on how these kinds of damages are awarded.”
However, regardless of a company’s size, it's important for employers to have proper sexual harassment and workplace harassment policies and protocols in place and ensure the workforce is properly trained on them, says Irwin.
“It's one thing to have a policy in place, but it's quite another to make sure that if these issues come up in your workforce, you're dealing with these complaints in accordance with your policies and procedures,” she says. “Otherwise, they're really not worth the paper they're written on.”
