‘Even if you conduct an investigation and you find out there's nothing to it, you still have to look into it’
An employer and a supervisor are jointly and severally liable for the supervisor’s sexual harassment and retaliatory firing of a worker, to the tune of nearly $50,000 in damages.
The worker was hired as a sales floor associate by a Toronto Canadian Tire franchise operated by Timothy J. Tallon Sales, on Oct. 17, 2017.
According to the worker, almost as soon as she started work, her supervisor started sexually harassing her through actions such as ogling her buttocks and breasts, making “gross” faces at her, talking about her breasts, making lewd gestures at her, and asking inappropriate questions about her personal life. This made the worker uncomfortable and she asked him to stop, but the behaviour continued.
The supervisor also asked the worker several times to go out on dates with him, but she refused.
On one occasion, the worker was near the store’s skate-sharpening counter with a customer. The supervisor discussed shaving pubic areas and both the worker and the customer were embarrassed. She asked him again to stop making such comments.
The supervisor also tried to convince the worker to go out with other men, making comments about her having sex with them. He suggested she go out with another employee and when the worker said she didn’t want to date a co-worker, he made a lewd comment.
The supervisor also sent sexually suggestive photos and texts to the worker.
Sexual harassment
In May 2018, the supervisor asked the worker if she wanted to go to a hotel room with him. The worker said she wasn’t interested in a sexual relationship with him.
After the hotel room request, the worker claimed that the supervisor reduced her weekly hours, warned her about taking too much time on breaks while others weren’t, refused her requests for time off, and told her not to speak with other employees.
The worker was afraid to approach anyone about a complaint, but she finally met with the store’s general manager in August. The general manager said that nobody else had complained about the supervisor’s behaviour and started discussing her job performance.
The worker also complained to the owner and the store’s human resources manager, but nothing was done.
The worker’s hesitancy and uncertainty about making a complaint highlights the importance for employers to have policies on reporting and investigating sexual harassment complaints, says Karen Tereposky, an employment lawyer at Samfiru Tumarkin in Calgary.
“One thing for an employer to have in these situations is some sort of process for people to make complaints - even an anonymous hotline - as a first step, because it’s difficult for employees, especially young employees, to bring up these kinds of things about their supervisors when they're scared they're going to lose their job,” she says. “Process and procedures that were obviously absent in this case should be the norm in workplaces, with some sort of reporting system - and then have a process for how the investigation will proceed.”
Discrimination complaint
On Aug. 27, the store terminated the worker’s employment. She filed a human rights application alleging discrimination in employment on the basis of sex, including sexual harassment and reprisal against the company and the supervisor personally.
Neither the company nor the supervisor responded to the Ontario Human Rights Tribunal’s correspondence regarding the case, so the tribunal noted they were in default and proceeded without further notice to them.
The tribunal noted that the onus was on the worker to establish that the company and the supervisor breached her rights under the Ontario Human Rights Code with “clear, convincing, and cogent evidence,” even if there was no defense. It also referred to the Supreme Court of Canada’s classification of workplace sexual harassment as “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.”
The tribunal found that the worker was credible and it accepted her evidence that, throughout her employment, she was subjected to ogling, vulgar comments, lewd gestures, inappropriate personal enquiries, and sexually suggestive texts by the supervisor. This behaviour persisted despite the worker’s clear indication that it was unwelcome and violated her right to freedom from harassment under the code, said the tribunal, adding that the request to go to a hotel with him violated her right to freedom from sexual solicitation or advance.
“When you start getting into any kind of sexual harassment or sexual assault, that brings in the protected ground of gender or sex under human rights legislation,” says Tereposky.
Reprisal
The tribunal also found that the supervisor was responsible for co-ordinating the worker’s day-to-day routine and he was able to “confer, grant, or deny benefits to the worker.” This placed him in a position of power over her and the repeated harassing behaviour created a poisoned work environment, violating the worker’s right to equal treatment with respect to employment without discrimination, the tribunal said.
In addition, the tribunal found that, following the worker’s rejection of supervisor’s hotel invitation, the supervisor’s attitude changed, resulting in “nitpicking” of the worker’s performance, denial of time-off requests, and instructions to limit interactions with other employees. The worker didn’t provide sufficient evidence to show her hours were reduced as her record of employment indicated otherwise, but the other actions constituted differential treatment that was intended as retaliation for the worker’s refusal to comply with the supervisor’s sexual solicitations, said the tribunal.
The tribunal found that the only evidence explaining the worker’s termination was a verbal warning for returning late from breaks, which the tribunal determined was itself a reprisal as no other employees who received such a warning.
As the code stipulates that “any act or thing done in the course of his or her employment by an employee of a corporation is deemed to be an act or thing done by the corporation,” the tribunal determined that the company was vicariously liable for the supervisor’s harassment in the workplace.
The company’s liability also stemmed from its failure to take any action to stop the harassment, says Tereposky.
“The employer basically didn't take the worker’s complaint seriously and it didn't investigate at all – that’s a big problem when an employee comes to an employer with allegations of sexual harassment in the workplace,” she says.
Workplace investigation
The company should have at least conducted an internal investigation that involved interviewing the worker and the supervisor to get both sides of the story, says Tereposky.
“For example, it looks like there were text messages for which they could have asked, and they could have seen if there were other witnesses,” she says. “Some employers would even use a third-party investigator, which, honestly, is the best way to do it - you can use a lawyer or there are [independent] workplace investigators.”
The company and the supervisor were jointly and severally ordered to pay the worker compensation for one year’s lost wages - $29,120 subject to statutory deductions – and $20,000 as compensation for injury to dignity, feelings, and self-respect. In determining the latter amount, the tribunal considered the worker’s vulnerability as a 23-year-old single mother at the time of her dismissal and the worker’s testimony that her self-esteem and mental health was negatively affected by the harassment.
Compensation for lost wages from discrimination isn’t supposed to be a wrongful dismissal analysis and there are no hard rules to it, according to Tereposky.
“They're not looking at how much notice she should be given, but they're trying to put her in a position that she would have been in had the discrimination not occurred, which is a difficult task,” she says. “It’s a lot of crystal-ball gazing and not very scientific - I got the feeling from reading the decision that [one year’s pay] is what the worker asked for and that's what [the tribunal] granted.”
Injury to dignity
As for the damages for injury to dignity, the amount is on the more conservative end of the scale, but that’s likely because there was no touching, says Tereposky.
“[The harassment] was all messages and comments, and cases where damages are around $50,000 or more usually have some kind of physical contact,” she says.
The tribunal also ordered that the supervisor, the company’s owner, and all members of the management team to complete the Ontario Human Rights Commission’s “Human Rights 101” e-learning module within six months of the decision.
“Ultimately, employers need to take these kinds of complaints seriously - even if you conduct an investigation and you find out there's nothing to it, you still have to look into it,” says Tereposky. “And that might seem like a lot of bother, but the alternative is ending up with a $50,000 judgment against you versus maybe putting in $1,000 worth of time and resources into it on the front end - it's always better to deal with things on the front end than to get these kinds of bad decisions against you as an employer.”
