Employee Was Sexually Harassed but No Tie to Termination

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In September, 2023, the Chair of the Prince Edward Island Human Rights Commission decided that a female employee was indeed sexually harassed while she was employed with the employer. Therefore, she was awarded $15,000 in general damages for mental anguish, humiliation, affront to dignity and/or emotional injury. Additionally, the Panel ordered the employer to create an anti-harassment policy (accepting direction from the Panel), and to pay for sexual harassment training for all staff members in a form that was satisfactory to the Human Rights Commission.

What happened?

The employee worked as a server at the employer’s restaurant.

According to the employee, she was subjected to sexual harassment from several male employees and one regular customer at work. The kinds of things she was exposed to included sexual comments, sexual joking and innuendo, use of derogatory language and sexual touching. When she told her employer about it, she was met with no response. In fact, she claimed that all of the three owner operators failed to act following her reports.

The employee even witnessed sexual harassment happening to other female employees; however, the employer’s response to their experiences was similar to what she experienced-nothing.

The employee subsequently took a medical leave of absence because of the impact that the sexual harassment had on her mental and physical health.

And on the day that she was medically cleared to return to work, the employer terminated her employment.

The employee launched a human rights complaint and alleged that she was discriminated against in the area of employment on the ground of sex contrary to the Human Rights Act. In her complaint, she described incidents of ongoing and continuous sexual harassment at work for two years. Further, she alleged that she was terminated because she made complaints about sexual harassment in the workplace.

In response, the employer argued that there was no sexual harassment in the workplace, or that they did not know about it. Also, the employer argued that the employee was laid off due to a lack of work: there was a non-discriminatory explanation.

What did the Commission decide?

The Chair of the Commission decided as follows:

• The employee did indeed experience sexual harassment in the workplace amounting to discrimination in her employment on the ground of sex. There was no question that sexual harassment was a form of discrimination based on sex. The Supreme Court of Canada has held that sexual harassment was 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 Panel accepted that sexual harassment in the workplace could create adverse job-related consequences in the conditions of employment amounting to discrimination and was understood to be included in the definition of sex discrimination in the Act. When examining each of the alleged incidents, it became clear that the employee had a characteristic that was protected by the Act, she suffered an adverse impact (having to work in a toxic environment and go on leave), and there was a link between her sex and the job-related consequences
• The employee was not able to establish a link between the sexual harassment and her termination of employment. Based on the evidence, there was no link between the sexual harassment and the termination. The Chair stated, “The lay off cannot be clearly connected to her experiencing or reporting sexual harassment in the workplace.”
• The employer was not able to justify or defend the discrimination. In fact, the employer provided no evidence other than the denial that it happened.
• The appropriate remedy involved the employee being awarded $15,000 in general damages for mental anguish, humiliation, affront to dignity and/or emotional injury. Also, the employer had to create an anti-harassment policy (accepting direction from the Panel) and the employer had to pay for sexual harassment training for all its staff in a form that was satisfactory to the Human Rights Commission.

What can we take from this development?

The Panel noted during the decision that “there were no procedures in place to deal with harassment.” In fact, the employer did not even respond to the concerns raised by the employees in a timely or appropriate manner. The complaints were not taken seriously, and the workplace was not a healthy place for the employee to be.

Furthermore, the Panel stated,

“Combined with no policy or training about sexual harassment and no active responses to complaints by the owners, the working environment was unsafe for staff and ripe for exploitation.”

In addition to the toxic environment created by the employer, the evidence was clear that what happened at the employer’s restaurant and the employer’s lack of response continued to have an impact on the employee’s mental health.

It is important for employers to remember that when they do not have policies or procedures addressing harassment and do not respond as though they take complaints seriously, the message that they send to employees is that they do not care about what happens to their employees in the workplace and they cannot be bothered to create and enforce their own anti-harassment policies and procedures.

Employers who want to send a strong message that they do not tolerate this type of misconduct in the workplace are recommended to provide training on sexual harassment, create anti-harassment policies and procedures, take employee complaints seriously and follow their own anti-harassment policies and procedures, and monitor employee misconduct so they can properly enforce their own policies and procedures.