WORKPLACE HARASSMENT

Introduction

Earlier this year the Toronto Star led with a front page story in its Life Section entitled, "Sexual Harassment a Workplace Hazard". The local newspaper was focusing on a growing social and workplace problem which has been the subject of numerous forms of media attention, particularly in the last few years. The Toronto Star article went on to state:

Although the debate [over sexual harassment] ebbs and flows, the problem has not been solved and, in fact, appears to be getting worse.

Sexual harassment complaints are increasing more quickly than other types of complaints being brought to the Ontario Human Rights Commission.

Every employer in Ontario, irrespective of the size of the company or the nature of the industry in which it conducts its business has both an ethical and legal obligation to provide a workplace that is free from discrimination. Without question, the elimination of harassment and sexual harassment in every workplace provides the single most difficult challenge to virtually every employer. Zero tolerance is an objective which all employers ought to strive for in dealing with harassment in the workplace.

The Legislative Scheme

The Ontario Human Rights Code provides that:

The Common Law's Approach

In common law, the courts have found an implied term in an employment contract and have generally held that an employee is entitled to decent treatment by the employer and to work in a safe and healthy work environment. A breach of such terms has been treated in some circumstances as cause for the termination of the offending party, and in other circumstances as grounds for constructive dismissal on the part of the offended party.

Recently, the Ontario Court of Appeal was called upon to deal with two cases heard on consecutive days by the court which sent a loud and clear legal message to employers, to the effect that the courts will impose high standards of conduct on employers and employees alike, and will permit little or no tolerance in sexual harassment cases in the future.

In Bannister v. General Motors of Canada, (1998) 40 O.R. (3d) 557 the plaintiff, Allan Bannister, sued for wrongful dismissal. Bannister was a 49 year old supervisor with 23 years of service and a good work record. As part of his job duties Bannister measured job performance and disciplined workers under his responsibility. In 1990 a female summer student complained that Bannister attempted to kiss her, made sexual innuendo and used sexually explicit language. Management interviewed other employees subsequently and discovered that four other female employees had similar complaints. When questioned, Bannister denied all such allegations and alleged the women were conspiring against him.

Bannister was dismissed with cause by General Motors but at trial, the judge stated that even if proved, Bannister's conduct did not constitute grounds for termination with cause. Although General Motors has a written sexual harassment policy in place, the policy had not been enforced, according to the trial judge. Bannister had been wrongfully dismissed because his conduct was perceived by the court as being no worse than other employees in his department.

On appeal, the court held that it was important that Bannister held a supervisory position with General Motors and that he also acknowledged he was aware of the company's sexual harassment policy. Another key feature of the case, in the court's view, was the fact that Bannister constantly denied the allegations throughout General Motors' extensive investigation and throughout the trial. In reversing the trial decision, and in reaching a finding of just cause for Bannister's dismissal, Mr. Justice Carthy, speaking for the court, concluded with the proposition that,

No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct.

A second and equally clear message that the Ontario Court of Appeal sent to employers is found in the decision in Gonsalves v. Catholic Church Extension Society (1998), unreported, O.J. No. 3404.

Gonsalves, 59 years of age, had sued the Catholic Extension Society of Canada for wrongful dismissal after 22 years of service. The basis for the plaintiff's termination by the Society were allegations of sexual harassment made by female employees. The Church Society had no formal policy in place concerning sexual harassment in the workplace. Gonsalves also continued to deny he had committed sexual harassment in the workplace.

At trial, Gonsalves was successful in obtaining substantial damages due to his dismissal without cause, apparently largely on the basis that his offensive behaviour had stopped months before the employee formally complained. The trial judge complained in his reasons, in awarding 20 months damages, the following:

Mr. Gonsalves had been a valued employee...for 22 years. He was 59 years old at the time of his dismissal. He had stopped his offensive conduct seven months before his behaviour came to light. Having regard to all the circumstances of the case, I conclude he was entitled to a warning that his conduct was completely unacceptable and that any re-occurrence of the behaviour would not be tolerated. In my view, the defendant has not discharged the onus upon it to establish that Mr. Gonsalves was properly dismissed for cause.

In reviewing the factors which a judge ought to take into account in determining whether or not harassment or sexual harassment related conduct which constitute just cause for termination, the trial judge held the following factors were critical:

1. the degree and nature of the sexual harassment;
2. whether the offender was told that the behaviour was offensive and unwelcome;
3. whether the offensive conduct had continued after the offender was told it was inappropriate;
4. whether the employer had a formal employment policy in place dealing with sexual harassment;
5. whether the offender was in a position of authority over the victim of the harassment; and
6. the nature of the relationship between the employer and the employee, including whether, because of the length of employment, the employer has a duty to provide counselling or support to an employee who has company breached company policy.

Finally, in reviewing those factors and how an employer ought to consider them, the trial judge stated:

No single factor is determinative in deciding whether an employee has been properly dismissed for cause. Instead, all of the relevant factors must be weighed in arriving at the ultimate conclusion.

The Ontario Court of Appeal overturned the trial decision and held that Mr. Gonsalves' employment was terminated for just cause. Gonsalves had admitted in evidence that he would not have needed to be warned that such conduct was offensive and, accordingly, the court held that the absence of a policy or warnings became irrelevant.

The Court of Appeal concluded in the Gonsalves case, on a policy level, that:

The employer has a duty to all the employees both to end the abuse and to alleviate its impact on the employment environment.

Understanding Sexual Harassment

In order to understand and address the issue of sexual harassment in today's workplace, one must first take a step back and get a firm grasp on what type of conduct constitutes sexual harassment.

In Janzen v. Platy Enterprises Ltd. (1989), 59 D.L.R. (4th) 352 (S.C.C.) at p. 375, after an exhaustive review of jurisprudence in literature, Chief Justice Dickson stated:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined 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. It is, as Adjudicator Shime observed in Bell v. Ladas...an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employee's forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and a human being.

Since sexual harassment is defined as unwelcome conduct, what constitutes harassment depends, at least to some degree, on the impact of each individual victim. What one individual finds offensive another may ignore or even condone. This fluid definition of what type of conduct amounts to sexual harassment makes it tremendously difficult for management to identify sexual harassment unless it waits for complaints to surface or, adopting a more proactive approach, defines in advance what conduct will, by definition, be viewed as unwelcome in the particular work environment.

Most knowledgeable human resource practitioners would agree that sexual harassment does not necessarily equate with sexual assault. While the most newsworthy situations involving sexual harassment typically involve some form of touching or other inappropriate fiscal contact, the definition as presented by the courts is much broader.

Sexual harassment may involve the following conduct:

1. verbal abuse or threats;
2. unwelcome remarks, jokes, innuendoes or taunting;
3. displaying pornographic or other offensive or derogatory pictures;
4. practical jokes which cause awkwardness or embarrassment;
5. unwelcome invitations or requests, whether indirect or explicit, or intimidation;
6. leering or other gestures;
7. unnecessary physical contact such as touching, patting, pinching, punching; and
8. physical assault.

It is useful to remember that sexual harassment knows no particular gender affiliations or requirements. Men can harass women, men can harass men, women can harass men, and women can harass women.

A Proactive Approach to Sexual Harassment in the Workplace

The first step to avoiding the complications of a sexual harassment complaint and the costs associated with such conduct is the preparation of a carefully considered and well drafted harassment policy. A comprehensive harassment and sexual harassment policy ought to include:

• a strong statement of the employer's philosophy concerning harassment, including sexual harassment in the workplace
• a clearly articulated definition of what constitutes harassment
• identification of persons covered by the policy
• the procedure for pursuing a sexual harassment complaint
• procedures to be followed in response to a harassment complaint;
• provisions relating to the disciplinary consequences of a breach of the policy;
• a statement regarding the confidentiality of the process;
• a concluding policy statement.

The second step in a proactive approach to dealing with workplace harassment issues involve the proper dissemination of the organization's policy on harassment in the workplace. Policies that are endorsed and embraced by senior management have proven to be most effective. The rank and file and middle management layers of the organization must see and appreciate that the senior officers and directors of the organization have "bought in" to the process of preventing sexual harassment in the workplace and are dealing with it in a timely and effective manner when it does occur.

The third, and final step, in a proactive approach to sexual harassment involves the development of an internal system for the fair and balanced investigation of every complaint of this nature. Every complaint should be taken seriously. Individuals must be aware that they are free to put forward complaints about sexual harassment in their workplace and that they will be free from retaliation or acts of intimidation as a result. They should be encouraged to use and rely upon the company's internal complaint mechanism and resolution system. In fact, complaints that are found to have been frivolously or vexatiously brought forward should have consequences attached to them for the individuals who initiated the complaint.

Conclusion

Both the courts and human rights tribunals appear to be moving in the direction of less and less tolerance for acts of harassment or sexual harassment in the workplace. It is therefore critical, particularly at this time in the development of the law in this area, that employers not only live up to their legal responsibility when dealing with issues of harassment and sexual harassment, but perhaps more importantly, that they be visibly seen to do so. Accordingly, proactive steps such as harassment and sexual harassment policies and well publicized complaint procedures set the correct tone for the elimination of harassment and sexual harassment in the workplace. As a bi-product, the same visible procedures will also help to reduce the employer's potential exposure to vicarious liability for the acts of employees, agents and contractors.

As we turn the corner into the 21st Century, it is absolutely critical that employers who have not yet adopted appropriate policies and attitudes towards harassment and sexual harassment in the workplace join the movement towards zero tolerance for these workplace problems. All of the motivating factors are present, including the statutory provisions which deem such acts to be discriminatory and the huge financial awards arising out of lawsuits. The road to eliminating harassment and sexual harassment from the workplace can be a long and winding one but, as with most journeys, it begins with the first step.