by Lewis Waring, Paralegal, Law Student, Editor, First Reference Inc.
In NK v Botuik (“Botuik”), the Human Rights Tribunal of Ontario (HRTO) awarded a former employee $170,000.00 for sexual harassment and gender discrimination, the second-highest amount of damages ever awarded in Ontario. The employer, in this case, Alan Stewart Homes Limited, owned and operated a number of group homes that served individuals with significant disabilities. Tenants at the employer’s group homes were disabled such that they were unable to live independently and were also incapable of caring for themselves in relation to everyday activities. The employee worked at one of the employee’s group homes, Brealey’s residence, as a Direct Care Worker until she experienced repetitive sexual harassment and gender discrimination which forced her to transfer.
One of the reasons for the HRTO’s generous remedy was the particularly egregious nature of the harassment which the employee suffered while working at the Brealey residence. The harassment which the employee experienced included forcible sexual intercourse against her will, which was the culmination of repetitive and continuous sexual harassment and solicitation which began in the workplace. The individual responsible for the employee’s sexual assault and harassment was her direct supervisor. The power and status of this supervisor coerced the employee to continue her relationship with him for fear that she might otherwise lose her job.
The beginning of the employee’s relationship with the supervisor
When the employee began working at the Brealey Residence, the supervisor had approached her in subtle ways which foreshadowed the coercion, sexual harassment and sexual assault that was to follow. On her first day of employment, the supervisor requested that the employee touch his hand and complimented her. A few days later, the supervisor touched her on the leg and soon after began complimenting her. The supervisor began calling the employee frequently on her personal phone although she had not given him her number. During training, the supervisor stopped speaking with her after he had made a comment about oral sex and the employee responded that she thought his comment was inappropriate.
This behaviour altogether began to form a pattern that had begun on the employee’s first day and continued until she attempted to stop the supervisor’s sexual harassment which resulted in her dismissal. Despite the employee’s repetitively voiced resistance, the supervisor forced the employee to participate in his chain of discrimination and in exchange provided her with benefits which he used as a tool of coercion.
The employee’s relationship with the supervisor
The employee and the supervisor’s relationship, which began during the employee’s probationary period, did include some meetings outside of the workplace. These meetings were characterized by the supervisor as a relationship, but in fact, the employee’s participation in their arrangement was not consensual but instead the product of the supervisor’s coercion. As the supervisor had power over her employment, the employee was essentially required to participate in a course of sexual harassment that in essence became part of her job duties. During meetings outside of the workplace, the supervisor controlled what took place and the employee gradually fell into dire emotional turmoil.
The supervisor’s sexual solicitation
The employee’s granting of benefits and threats of consequences was in fact a form of sexual solicitation. The nature of the supervisor’s position in relation to the employee was crucial to the HRTO’s finding of sexual solicitation. The supervisor’s power over the employee’s employment meant that he was in a position to confer, grant or deny a benefit. That is, the supervisor was able to force the employee to grant his requests due to his ability to give her advantages she would not otherwise have been privy to. The supervisor did in fact grant the employee benefits as he sexually harassed her, granting her more working hours than other part-time employees were entitled to as well as permitting her to take advanced training. In fact, the supervisor granted her the position of “team lead” even before she had completed her probationary period.
However, as the supervisor granted these unusual benefits, he also threatened the employee with repercussions for disobeying him, constantly reminding her “how important he was in the workplace” and that he could “make things happen.” These statements were unspoken threats which represented the supervisor having the power to remove her generous allotment of hours and other benefits if she “displeased him.” This solicitation meant that the employee’s status within the workplace, whether she advanced or was dismissed, was totally unrelated to her performance as an employee. Instead, her success in the workplace was a function merely of her obedience to a supervisor that had forced her to accept sexual harassment and ultimately sexual assault if she wished to avoid being dismissed.
The supervisor’s sexual assault
On the night of September 3, 2016, the employee attempted to end her relationship with the supervisor who, in response, sexually assaulted her and threatened to have her dismissed. After the employee had been sexually assaulted, the employee did not contact the police or others due to fear of losing her job. When she later did report the assault to her employer, she was suspended with pay while her employer conducted an investigation. At the conclusion of her employer’s investigation, she was dismissed. In other words, her employer dismissed her because she had reported a sexual assault committed by her supervisor.
Lessons for employers
Botuik is an important case in Ontario’s human rights and employment law not because it weighs in on a complicated topic but because it illustrates the absolute prohibition on gender discrimination, sexual harassment and sexual assault in the workplace.
Employers must take any reporting of sexual harassment in the workplace extremely seriously. The potential for sexual harassment and gender discrimination in the workplace which may even extend outside of the workplace must be regarded as a reality to be addressed proactively and responded to correctly. Employers must put into place written policy and procedures related to sexual harassment and conduct investigations in a way that is systematic, objective and timely. Overall, Botuik serves as a reminder to employers of the egregious nature of sexual harassment and the dire consequences of failing to take seriously gender discrimination in the workplace.