Don’t have an office policy dealing with sexual harassment? You could be setting yourself up for costly legal troubles. Many dentists might be thinking: it doesn’t happen in my office. But do you know what sexual harassment is? Did you realize that you’re responsible for sexual harassment committed by your employees? Are you willing to risk having to appear before the Human Rights Tribunal? Why wouldn’t you take some basic steps now to avoid a potentially devastating situation (human rights proceedings are public and expensive to defend against!). If you want to learn more about sexual harassment and you’re obligations, read on…
What is Sexual Harassment at Work?
The Human Rights Code (the “Code“) and the Occupational Health and Safety Act (the “Act“) define harassment as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Examples of sexual harassment include:
- asking for sex in exchange for a benefit or favour
- repeatedly asking for dates and not taking “no” for an answer
- demanding hugs or kisses
- making unnecessary physical contact, including unwanted touching
- using rude or insulting language or making comments
- calling people sex-specific derogatory names
- making sex-related comments about a person’s physical characteristics or action
- saying or doing something because you think a person does not conform to sex-role stereotypes
- posting or sharing pornography, sexual pictures or cartoons, sexually explicit graffiti or other sexual images
- making sexual jokes
- bragging about sexual prowess
Sexual harassment “at work” includes job interviews, volunteer work, internships, working interviews and includes work outings and after-hours events which are off business premises.
The Human Rights Code
Section 7(2) of the Code states that “Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee”.
Individuals who commit sexual harassment and companies who condone or mishandle cases of sexual harassment at work may be liable to the person being harassed.
The Code provides for monetary and non-monetary remedies for victims of sexual harassment including compensation for lost wages. Section 46.2(1) states that individuals who are in breach of the Code, including those responsible for sexual harassment in the workplace (meaning employers) may be guilty of an offence and upon conviction may be liable to a fine up to $25,000.
In a recent Human Rights Tribunal case, Horner v. Peelle Company Ltd, 2014 HRTO 1211, the Tribunal awarded a victim of sexual harassment $78,219. The harassment in question was perpetrated by the employer who, honestly believing there was a romance blossoming between them, asked the employee for a kiss. The request was denied by the employee but the behaviour of the employer following the denial was held to amount to reprisal (being a form of unwarranted punishment). The employee was awarded $28,000 for injury to dignity, feelings and self-respect due to the violation of her rights and $50,219 for loss of earnings.
The Code does not mandate a sexual harassment policy, but employers can prevent many cases of sexual harassment by having a clear, comprehensive and anti-sexual harassment policy in place. Furthermore, the Human Rights Tribunal, when making decisions on sexual harassment, considers the following:
- the procedures in place at the time to deal with discrimination and harassment;
- how quickly the organization/employer responded to the complaint;
- how seriously the complaint was treated;
- the resources made available to deal with the complaint;
- if the organization/employer provided a healthy environment for the person who complained; and
- how well the person who complained was told about the action taken.
The Occupational Health and Safety Act
The Act requires employers with 5 or more employees to prepare internal policies with respect to workplace violence and harassment, which includes sexual harassment (see section 25(2)(j)). Such policy must be reviewed at least annually and a written copy of the policy must be posted in the workplace.
It is also not good enough that the employer has a no-harassment policy. Employers must also develop and maintain a program to implement the policy (see section 32.06). For example, the employer must include procedures for how employees can make complaints and how those complaints will be handled.
Section 50 of the Act says that no employee may be fired, disciplined, have a penalty imposed on them or be intimidated or coerced because of complying with the Act, seeking to enforce the Act or giving evidence in a proceeding having to do with the Act.
If an employer is found to have breached the Act, they will be found to be guilty of an offence and on conviction will be liable to a fine up to $25,000 or imprisonment for a term of not more than 12 months. If the employer is a corporation and is convicted for breaching the Act, it may be liable for a fine of up to $500,000.
Employees who are punished in contravention of section 50 (see above) may seek payment of lost wages, reinstatement and payment of any other financial losses the employee may have suffered as a result of the employer’s breach.
If you are a dentist employer who has more than 5 employees, you MUST have an employee harassment policy including systems for dealing with harassment complaints. A harassment policy serves to protect you and gives you the opportunity to develop guidelines for best practices in situations of harassment. Having this policy is worthwhile, even if you have less than 5 employees.
If you need help constructing your own sexual harassment policy and becoming/remaining compliant with the Act, contact our employment law team today. We are your legal dental team.