Employer met duty to accommodate pregnant worker, but also sexually harassed her: Ontario court
“A lot of people have a preconceived notion about what sexual harassment means -behaviour along the lines of nonconsensual touching or flirting - but sexual harassment can also mean comments on the basis of someone's sex or pregnancy.”
So says Samantha Sutherland, an employment lawyer and workplace investigator at Turnpenney Milne in Toronto, after the Ontario Human Rights Tribunal ruled that a pregnant worker was subjected to sexual harassment in the workplace, although her employer still met its duty to accommodate her pregnancy-related disability.
In December 2016, the worker moved into an apartment building in Toronto with her spouse and child. She arranged with the building’s owner to be the building’s superintendent in exchange for living in the apartment rent-free, which she estimated to be about $1,300 per month. There was no formal lease agreement or employment contract.
“Even if there isn't a formal employment contract in place, courts and tribunals will often look beyond that and look at what the day-to-day of the relationship looks like,” says Sutherland. “And I think that speaks to the role of the [human rights] tribunal and their duty in looking out for the human rights of individuals - they often take a very broad and liberal approach to who is an employee, perhaps even more broad and liberal than the courts, with respect to the scope of what is an employment relationship.”
The worker’s duties involved collecting rents, managing tenant complaints, and cleaning and maintaining the building. She was responsible for cleaning common areas daily, shovelling and salting the building’s four entrances during the winter, and cutting the grass in the summer.
Offensive comments
In early 2018, the worker informed the owner and the owner’s wife that she was pregnant.
According to the worker, in March the owner made a couple of comments about her pregnancy during a meeting in his office. He said, “Oh my gosh, your belly grew quite a lot” and “People say that when a woman’s belly grows, her vagina also grows.” The worker took these comments as vulgar and offensive.
The owner then asked her, “Can you let me see?” but she refused. He replied by saying, “Why not? I just want to see, not touch.” The worker left the office after that.
The owner never tried to make any physical contact with the worker.
About one week after the meeting, the worker told the owner that she would need accommodation regarding her job duties that involved physical labour. She said she could continue collecting rents and managing tenant complaints, but she wouldn’t be able to do any cleaning or maintenance duties.
Accommodation request
The owner said that it was her responsibility to complete the superintendent tasks and if she needed help, she could ask her spouse or find someone else to do the work for her. The owner’s wife told her the same thing.
In September, the worker advised the owner that she was due to give birth in two weeks and she would be unable to perform her cleaning or maintenance duties. The owner again suggested that she should seek assistance from her spouse or someone else. He also said that “if you can’t do the job you have to leave.”
On Oct. 4, after the worker gave birth, she provided the owner with a letter of resignation. She also made a human rights application alleging discrimination in employment because of sex stemming from the owner’s sexually harassing comments and failure to accommodate her pregnancy-related disability. She sought $25,000 in damages for injury to her dignity, feelings, and self-respect.
The tribunal found that, while a couple of the comments weren’t harassment, the one referencing her genitals constituted sexual harassment. The comments as a whole were “demeaning and objectifying” and an “affront to her dignity,” said the tribunal, adding that the owner knew or ought to have known that they were unwelcome and they made the worker feel “uncomfortable and distressed.”
Although there were no allegations of physical contact or sexual propositions, the tribunal determined that the comments met the definition of harassment under the Ontario Human Rights Code. Even though the meeting was a single event, there were several comments over the course of the meeting and it took place in the workplace, the tribunal said.
Sexual harassment
“Usually, sexual harassment is a course of conduct – that’s what the test is under the case law and the legislation,” says Sutherland. “But in this case, [the tribunal] found just one comment was egregious enough to constitute sexual harassment - the totality with the other offensive comments led to the award, but it was only that one comment that went over the threshold [of sexual harassment].”
As for accommodation, the tribunal said that the worker clearly requested it when she asked to be relieved of her physical duties while continuing administrative tasks. However, the physical tasks were essential to the superintendent position – and were the primary focus of the job - and the employer wasn’t obligated to fundamentally alter the nature of the position by removing essential duties in order to accommodate her, said the tribunal in finding that it would be undue hardship to grant the worker’s request.
The tribunal reinforced the principle that an accommodated employee must be able to perform useful and productive work in their accommodation, according to Sutherland.
“[The worker] said she was still able to do collection of rent and administrative tasks, but the tribunal found that's really only a small portion of her job duties,” she says. “The employer would have to fundamentally change working conditions in order to accommodate her – an employer doesn’t have to fundamentally alter the workplace, it just has to make sure that [the worker] is able to work in a productive manner for the employer.”
The tribunal also noted that the owner and his wife engaged in discussions with the worker about her request and suggested that she seek assistance from her spouse or another individual. This constituted a reasonable accommodation attempt and met the employer’s procedural accommodation obligations, the tribunal said.
Duty to accommodate
It shows the procedural duty isn't a high onus on the employer, according to Sutherland.
“It was two seemingly informal conversations, but what's important is the employer tried to accommodate and the worker didn't engage in that dialogue,” she says. “You have to cater the accommodation dialogue to the facts - if it's a more complex accommodation, perhaps it requires a complex dialogue, but here it seems it was more of a straightforward accommodation and the employee wasn't willing to engage. For the tribunal, that was the end of the story.”
The tribunal reviewed case law on sexual harassment damages, noting that awards ranged from $15,000 to $200,000 and finding that the owner’s comments in one limited interaction were at “the very lowest end of the spectrum of sexual harassment cases.”
As the owner passed away in 2022, the tribunal ordered his estate to pay the worker $7,500 in damages for injury to dignity, feelings, and self-respect arising from the harassing comments. The failure to accommodate allegation was dismissed.
While the damage award wasn’t a large amount of money, it illustrates the importance of workplace policies and workplace training around harassment, according to Sutherland.
“ If you think about it, an employer could be liable for $7,500 for one comment made at one time - to me, that's quite significant and a real reason why workplaces should be attuned to ensuring that they have policies and training in place to make sure that they aren't liable for something that happens behind closed doors on one occasion.”
