What’s at Stake when the Harasser is an Employee or the Employer

Harassment is unacceptable in the workplace and can be severely detrimental for the victim. It can, and does lead to absenteeism, lower productivity, anxiety, depression, and post-traumatic stress. That is why the topic is a mandatory policy by law in Canada.

What often happens in Canada and the United States is that employees accused of harassment are simply fired, and many times their actions will continue to haunt them in the long term. But there are different types of harassment.

In December 2018, an organization called Insights on Canadian Society, in partnership with Statistics Canada, released a study based on data collected among approximately 9,000 Canadians workers aged 15-64 from the year 2016. The study identified various types of harassment at work: verbal abuse (13% of women vs. 10% of men), humiliating behaviour (6% of women vs. 5% of men), physical violence (3% of women vs. 1.5% of men), and sexual harassment (4% of women vs. 1% of men).

In 2012 the Red Cross asked an official to resign due to allegations he had sexually harassed two subordinates. The next year he was hired at Save the Children, but five years later his past came back to haunt him, forcing his new employer to place him on administrative leave and then terminate him.

In 2016 Reuters terminated a senior editor after his subordinate filed a sexual harassment complaint. He was then hired at Newsweek and worked there until his new employer discovered his past, placed him on leave, and in 2018 terminated him.

Employees often get fired or are forced to resign when accused of harassment, but what happens to an employer knowing that “an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee.” (Timothy J. Latch, Associate, Taylor McCaffrey Lawyers)? And what happens if the employer is doing the harassing? Could the employer end up paying huge fees and more? YES, but it depends on the context and for that I defer to an employment lawyer for advice.

In the case Merrifield v. Canada (Attorney General), 2019 ONCA 205, RCMP management could have ended up paying the plaintiff, a sergeant on the force, $966,000 for harassment suffered at work, and to cover the legal costs of his 12-year lawsuit against them. But in March, 2019 the Ontario Court of Appeal reversed that decision, concluding that there was no free- standing tort of harassment in Canada and the circumstances of the case were not compelling enough for the birth of that tort at the time.

However, the Ontario Court of Appeal did not reject the possibility of a free-standing tort of harassment in the future. What would that mean? Employees could potentially sue their employers for significant money damages under the ‘right’ circumstances.

Consider the case O.P.T. v. Presteve Foods. In 2015, the Human Rights Tribunal of Ontario ordered the employer to pay damages of $150,000 for an ongoing pattern of sexual harassment in the workplace. The message sent was that harassed employees can indeed sue their employer for money damages. Keep in mind that the reputation of the one doing the harassing, be it employer or employee, could be negatively impacted and even destroyed. So, what can employers do to increase the likelihood of workplaces free of harassment?

Here are three tips:

1. Follow the law.For instance, the Occupational Health and Safety Act (OHSA) applies to almost every staff/organizations in Ontario; so, design a Workplace Harassment policy under the OHSA. The policy should include cases and sources of workplace harassment and how to report it. Also, when developing the policy consult an employment lawyer. The policy can be part of your employee handbook or code of conduct.

2. A policy is not implemented if employees are not aware of it. Ensure employees are informed/educated/updated about it and that everyone (including you) understand it. For instance, harassment complaints often involve verbal abuse, so educate yourself and everyone else on how to communicate with others. Remember that there is a fine line between reasonable staff management and harassment.

3. Monitor the presence of harassment in your workplace and take immediate action. Periodically conduct a confidential survey to assess harassment (maybe through an external provider in order to ensure that employees feel safe to share information). If you have employee-relations specialists on your team, encourage employees to speak to them for initial guidance. Also, walk around the workplace and look for any inappropriate behaviour or offensive notes.

The bottom line is that everyone has the right to feel safe at work which is a place where we spend most of our time every week.