Category: Sexual Harassment in the Workplace

To have a successful employment relationship between the employer and employee, the employer is obligated to ensure that the workplace is free from harassment and discrimination to protect an employee’s human rights. This can include policies outlining the requirements to maintain a work environment that addresses harassment and discrimination and an investigative process to examine any claims that come forward from employees. Otherwise, employers may risk being liable for human rights violations. Generally, employees are also expected to bring forward harassment claims in a timely manner so that the employer can investigate their claims and provide a resolution. 

In this post, we will go over harassment in the workplace as a human rights violation and how this also relates to a claim of a poisoned workplace that prevents an employee from working in that environment. We will discuss a case example, Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312, in which a sexual harassment case was raised before the Human Rights Tribunal but was dismissed as there was no evidence that the employee had raised the issue with their employer until six months after their termination. This post will provide key takeaways for employers seeking to understand their obligations to ensure the workplace is harassment-free and give employees insights into their rights to work in a harassment-free environment. 

Harassment in the Workplace as a Human Rights Violation 

Human rights in the workplace are governed by the Human Rights Code (the “Code”). Under sections 5(1) and (2) of the Code, each employee has a right to equal treatment in their workplace, without discrimination based on race, ancestry, sex, sexual orientation, and more. Section 7(2) of the Code also outlines issues concerning harassment because of sex in workplaces. Under this section, each employee has a right to be free from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression by their employer, an agent of the employer, or another employee. Notably, employees are free from harassment from both the employer and other employees. 

Harassment is defined in section 10(1) of the Code as engaging in vexatious comments or conduct that is known or ought to be known to be unwelcome reasonably. It is important to note that it is unnecessary for the person causing the harassment to know that the other person does not want to be treated this way if a reasonable person would conclude that it would be unwelcome behaviour. In other words, the person harassing another cannot rely on the excuse that they did not know their behaviour was inappropriate. 

If it was another employee who sexually harassed the claimant, the employer is not vicariously liable under section 46.3(1) of the Code, although there are some exceptions under the case law. For harassment, it is possible for an employer to be liable if the harasser was part of the directing mind of the employer as a corporation or organization or where management knew or ought to have known about the harassment but failed to take reasonable steps to address it. The employer’s response could also be relevant to the finding of a poisoned workplace, as described below. 

The person claiming harassment is responsible for proving it on a balance of probabilities (i.e. more probable than not). To prove harassment as a human rights violation, the claimant needs to provide clear, convincing, and cogent evidence. 

Poisoned Workplace Due to Harassment 

A related issue is a poisoned workplace arising from harassment. This finding uses the same test for determining a poisoned work environment, resulting in a constructive dismissal. Essentially, this means that the work environment was so poisoned that it fundamentally changed the employment contract, which includes an implied term that the employer will provide a work environment that is not so unwelcome that a reasonable person would conclude that the employee could no longer work there. 

The test for finding a poisoned work environment is the following:

1. There must be evidence that would lead a reasonable bystander to conclude that there was a poisoned workplace; 
2. For stand-alone incidents, a poisoned workplace only arises if the conduct is so serious that it creates a hostile or intolerable work environment; otherwise, the behaviour must be persistent or repeated.

The Human Rights Tribunal will also consider other relevant factors, such as:

1. The number of comments or incidents;
2. Their nature; 
3. Their seriousness; 
4. Whether taken together, the comments or incidents had become a condition of the claimant’s employment such that they had to endure discriminatory conduct and comments.

A poisoned work environment differs slightly from harassment, as defined in the Code. A finding of harassment involves a series or course of comments or conduct, whereas a poisoned work environment can be found for an egregious stand-alone incident. Also, if a poisoned work environment is found, the employer can be found liable under the Code.

Obligations of An Employer To Address Harassment in the Workplace 

In the Rougoor case, the claimant made a human rights claim of sexual harassment in the workplace. She claimed that her co-worker harassed her, and the employer failed to investigate the matter properly. Several months after she was terminated, she informed the employer that she was sexually harassed in the workplace. 

However, the Human Rights Tribunal noted that previous human rights cases ruled that an employer has no legal duty to conduct a workplace investigation after the person requesting it is no longer an employee. 

The employer claimed that at no point during the employee’s employment were they aware she was being harassed. In this case, there was no evidence to suggest that she reported the harassment while working for the employer. There was also no evidence that the employer should reasonably know that the employee faced harassment. Without this knowledge, the Human Rights Tribunal found that the employer could not address the issue. The Human Rights Tribunal, therefore, concluded that there was no poisoned work environment that the employer could address. 

Overall, the claimant’s evidence was inconsistent and could not be supported by any documentation. The claim was dismissed.

Contact Haynes Law Firm in Toronto for Advice on Workplace Harassment Claims

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with workplace harassment claims, which can lead to a poisoned work environment where an employee cannot continue working. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in workplace harassment cases. Haynes Law Firm also assists employers in avoiding liabilities that may arise from harassment claims. We are dedicated to finding the best resolution for you.To book a consultation, please contact us online or by phone at 416-593-2731.

Sexual harassment is a specific form of workplace discrimination involving comments, jokes, or conduct relating to sex, sexual orientation or gender that are unwelcome and inappropriate.  

Employees are protected from sexual harassment by law, including under the Ontario Human Rights Code. They may bring a claim against the employer for sexual harassment experienced in the workplace, such as for constructive dismissal. But what happens if the employee signs an agreement releasing the employer from liability?

This article looks at the recent decision of the Human Rights Tribunal of Ontario in Murphy v Anishnabeg Outreach Employment and Training, in which an employer sought to rely on a release signed by an employee who alleged that she was sexually harassed. The case demonstrates that an employee may still be able to claim discrimination or harassment even if they have signed an agreement with the employer to resolve the issue.

What is sexual harassment?

Under the Human Rights Code, every employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by their employer (or agent) or by another employee. 

Sexual harassment can form small aggressions that continue over time or may be defined by a single incident. The types of behaviours which may be considered sexual harassment in the workplace include communication about sexual activities, jokes relating to sexuality or gender, unnecessary physical contact and demanding sexual favours.

Employee resigned after alleging sexual harassment

In the case before the Human Rights Tribunal, the applicant employee alleged discrimination on the ground of sex and sexual harassment by her employer and its chief executive officer. She claimed that the CEO repeatedly made comments and engaged in inappropriate behaviours.

The applicant resigned from her position and was called to an emergency Board meeting. At the meeting, her resignation was put on hold until an external investigation took place. She was later advised by the investigator that the investigation had been completed and that the CEO would remain in his position. The employee responded that she did not wish to return to work.

Employee signed agreement and release to receive final pay cheque

Shortly after, the CEO emailed the applicant a letter of agreement stating that the Board acknowledged receipt of her resignation and that it would continue to pay her wages until her interview with the investigator, provided that she signed the agreement and was released within two days. The release said that the applicant agreed not to pursue any claims, demands or actions on account of the termination of her employment, including any claims for discrimination under the Human Rights Code. 

The applicant signed the documents and returned them to another Board member. She did not obtain legal advice and said that “she wanted to end the angst and panic” which she had been experiencing and “just wanted to be done with it all”.

The employer asked the Tribunal to dismiss the application as an abuse of process because the employee signed a full and final release. 

Employee argued economic and psychological duress

Adjudicator Mounsey explained that the release was broad, but the language was clear. The central issue was the circumstances under which the applicant signed the agreement and release and whether there was a valid basis for invalidating these contracts due to duress.

The Adjudicator noted that the Human Rights Code does not expressly bar applications where a release has been signed. However, the Tribunal may make such orders as it considers proper to prevent abuse of its processes. 

While a release should not easily be disturbed where the literal and ordinary meaning demonstrates a clear intention to fully and finally release a party from all claims, there may be compelling reasons to set the contract aside, such as where there is economic or psychological duress. 

Tribunal found that there was no economic duress

The Adjudicator explained that both economic and psychological duress requires an element of threat or coercion that must be experienced at the time of signing. Where economic duress is claimed, a party must establish that their need was so serious that they had no other option but to sign the release or agreement. 

The Tribunal decided that the applicant had not proven that the loss of her position resulted in financial hardship which left her no choice but to sign the settlement documents. 

Tribunal allowed claim to proceed due to psychological duress

However, the Adjudicator was satisfied that the applicant demonstrated that she was under emotional and psychological duress. In particular, the Adjudicator noted that the applicant testified that she found the email from the CEO coercive and threatening and found that this was a reasonable reaction. She had advised the Board that she did not wish to have any further contact with the CEO. 

The Adjudicator also noted that the applicant:

“Was provided with roughly two days in which to consider her legal position and determine whether to execute the Letter Agreement and Release. She was not advised of, or provided with, an opportunity to seek independent or legal advice concerning these documents.”

As a result, the Tribunal found that the release was not a bar to the employee’s application. The application was permitted to continue through the Tribunal’s process, including a substantive determination on the harassment allegations. 

Contact Haynes Law Firm in Toronto for Advice on Sexual Harassment

Too often, employees feel pressured into signing documents without the opportunity to conduct a proper review or consider the implications. Haynes Law Firm can help employees obtain the compensation they are entitled to, including where they have or continue to face sexual harassment at work. We also help employers meet all workplace safety and harassment compliance obligations. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

Sexual harassment is a specific form of workplace discrimination involving comments, jokes, or conduct relating to sex, sexual orientation, or gender that are unwelcome or ought to be known are unwelcome. Employers are legally required to take action when they become aware of a claim of sexual harassment in the workplace. Following an investigation, it might be appropriate for the employer to provide sensitivity training or even terminate the employment of the employee that engaged in the behaviour.

In the event of termination, it is possible that the dismissed employee may bring a claim for wrongful dismissal, arguing that the employer failed to demonstrate just cause. 

In the recent case of Hucsko v A.O. Smith Enterprises Limited, the court was called upon to decide whether an employee could be terminated for just cause following an investigation into a complaint made by a co-worker regarding four inappropriate comments that constituted sexual harassment. 

Workplace Investigation into Inappropriate Comments 

In 2017, the plaintiff, an employee of 20 years, was investigated by his employer for making inappropriate comments. The complainant, another employee, made a formal complaint to the human resources manager alleging sexual harassment. The manager and director of finance and administration conducted an investigation and concluded that the plaintiff made inappropriate comments. The employer provided a final warning to the plaintiff and required him to participate in sensitivity training and provide an apology to the complainant.

The plaintiff did not agree with the conclusions and sought legal advice. His lawyer wrote to the employer stating that the plaintiff would undertake the training but was not prepared to issue an apology admitting to any wrongdoing.

The employer subsequently suspended the plaintiff and then terminated his employment for cause effective immediately due to “an irreparable breakdown in the employment relationship” based on inappropriate comments inconsistent with company policies, a lack of remorse indicating an inability to correct the behaviour going forward and refusal to comply with the required corrective action constituting willful insubordination. 

Challenge Brought by the Dismissed Employee

The plaintiff succeeded in a wrongful dismissal claim before Justice Taylor of the Superior Court of Justice of Ontario and was awarded damages in lieu of 20 months’ notice.

His Honour found that it was unclear whether the employer had concluded that the plaintiff’s conduct amounted to sexual harassment, but that he was dismissed for insubordination. The plaintiff’s conduct did not justify a conclusion that there had been an irreparable breakdown in the employment relationship. 

Justice Taylor criticized the employer for failing to respond to the lawyer’s letter and negotiate the wording of an apology acceptable to both parties. While the employer was entitled to terminate on the basis of an incompatible working relationship with a colleague, it was not entitled to create a situation in which it relied on just cause to terminate the plaintiff’s employment.

The employer appealed to the Court of Appeal for Ontario.

Did the Trial Judge Err in Finding that the Termination for Cause was Not Justified?

Justice of Appeal Feldman considered three arguments put forward by the employer.

Did the Trial Judge Make an Error of Fact by Finding that the Employer Did Not Conclude that the Plaintiff’s Comments Amounted to Sexual Harassment?

Her Honour held that the trial judge erred in finding that it was unclear whether the employer found that the comments constituted sexual harassment. The investigation’s finding that the comments were inappropriate was in the context of a complaint of sexual harassment – the investigation concluded that the allegation of sexual harassment due to the making of inappropriate comments was substantiated.

Did the Trial Judge Err in Law by Failing to Apply the Correct Test for Determining Whether the Employer had Just Cause to Dismiss the Plaintiff?

Her Honour cited authority setting out the test as:

the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. …

Application of the standard consists of:

1. determining the nature and extent of the misconduct;

2. considering the surrounding circumstances; and

3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

Justice of Appeal Feldman held that the trial judge erred in applying this test by failing to properly identify and characterize the conduct for which the plaintiff was terminated. The plaintiff’s conduct consisted of both making inappropriate comments and then refusing to apologize, not just the latter. His Honour did not adequately address the second step either, failing to consider the employer’s harassment policy and recent training undertaken by the plaintiff.

Did the Trial Judge Err by Failing to Find that the Employer had Just Cause to Terminate the Plaintiff’s Employment?

Justice of Appeal Feldman proceeded to apply the three-step test. Looking at the nature and extent of the misconduct, her Honour concluded “there is no doubt that [the comments] constituted sexual harassment”. Moving to consider the surrounding circumstances of both the employee and the employer, her Honour placed significant weight on the fact the plaintiff had just received training on the employer’s harassment policy and was a senior employee, and as such, would have been trusted to abide by the policy in his relations with co-workers.

Finally, her Honour decided that the misconduct was sufficiently serious that it resulted in a breakdown of the employment relationship and that dismissal was a proportional response by the employer. The giving of a final warning and opportunity to redeem himself by taking training and apologizing was a fair and proportionate response. Failure to understand his conduct and accept the discipline imposed led to a complete breakdown in the employment relationship. Termination of the plaintiff was justified. 

Contact Haynes Law Firm in Toronto for Advice on Sexual Harassment

Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. Our legal team represents employees facing sexual harassment and helps wrongfully dismissed employees obtain the compensation to which they are entitled. We also help employers ensure they meet all workplace safety and harassment compliance obligations. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.