A recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”) highlights the complexities of determining whether sexual conduct between co-workers was consensual in the context of sexual harassment investigations, and the high level of liability that can result when an employee suffers sexual harassment or assault in the workplace. Determining whether sexual conduct was truly consensual is particularly difficult where the co-workers involved are in a subordinate and supervisor relationship, given the power imbalance between such employees. It is crucial for employers to understand these complexities and the challenges that they present to properly address workplace sexual harassment.
In NK v Botuik [Botuik], the Tribunal awarded $170,000 in damages to an employee who was subjected to serious and prolonged workplace sexual harassment and assault by her supervisor.
Facts
The Applicant, NK, was employed for nearly a year as a Direct Care Worker at group homes for adults with disabilities.
The Respondent, Jeffrey Botuik, was the Applicant’s supervisor. The Respondent was the central authority figure in the workplace and assigned hours and shifts to all of the employees in his sole discretion. He made this authority known to the Applicant at the outset of her employment and would often “dangle” shifts over her.
The Applicant characterized her early interactions with the respondent as “odd” rather than threatening. However, the Respondent’s behaviour quickly escalated and he subjected the Applicant to an extended pattern of increasingly brazen sexual harassment. The alleged misconduct by the Respondent included:
- frequently contacting the Applicant on her personal cell phone about matters unrelated to work despite that she did not give him her personal number;
- asking the Applicant for a massage and kissing her while in a locked office;
- groping the Applicant while they were at work, sometimes in front of residents;
- routinely asking for sexual favours; and
- sexually assaulting the Applicant.
Initially, the Applicant objected to the Respondent’s advances, but he ignored her objections and forcibly persisted in his behaviour. As a probationary employee and a single mother, the Applicant deeply feared losing her job and felt helpless and overwhelmed. As a result, she eventually stopped resisting the Respondent’s advances and they entered into a “strange, seemingly consensual relationship”. When the Applicant attempted to end their relationship, the Respondent threatened her employment and said that he would reduce her hours.
Ultimately, the Applicant invited the Respondent to her home, where she told him that she wanted to end their relationship. The Respondent became enraged and told her she could “kiss her job goodbye” before subjecting her to a violent physical and sexual assault.
The Applicant reported these events to her employer and it commenced a workplace investigation. The employer’s investigation found that its harassment and workplace safety policies had not been violated because the relationship between the Applicant and Respondent and their sexual activity was consensual. Nonetheless, the employer terminated both parties’ employment for cause because they had both engaged in “unacceptable and inappropriate behaviour” in the workplace.
The Applicant filed an application with the Tribunal against both the Respondent and the employer alleging that her rights under the Human Rights Code [Code] had been violated. However, the Applicant and the employer reached a settlement prior to the hearing of her application, and she withdrew her the claims against the employer. Accordingly, the Tribunal only made findings in respect of the Applicant’s claims against the Respondent.
Decision
The Tribunal was satisfied that the Respondent subjected the Applicant to “persistent and severe” sexual harassment and solicitation in and in relation to the workplace.
The Tribunal found that the relationship of the parties and the events that took place outside of work remained materially tied to the workplace, and therefore violated the Applicant’s rights under the Code. The forced relationship between the parties outside of the workplace was caused by the Respondent’s continued exploitation of the Applicant’s fears regarding her job security, over which the Respondent exerted control. The Tribunal characterized the relationship between the parties as being based on “manufactured” consent in that the Applicant was “bullied and mentally beaten down into a state of fearful compliance”, and was clear that the law does not recognize this as consent at all.
The Tribunal awarded the Applicant $170,000 in damages—the second largest amount ever awarded by the Tribunal.
Takeaways for Employers
Botuik makes clear that when an employee is coerced into agreeing to sexual activity it is not truly consensual, and investigations of workplace sexual harassment and assault must be conducted with that consideration in mind. Further, a nuanced understanding of consent that is sensitive to the impact of the power imbalance between supervisors and their subordinates is crucial to properly investigate allegations of sexual harassment involving such employees. Accordingly, employers would be well advised to retain an experienced external workplace investigator who has specific expertise investigating sexual harassment, given the unique challenges involved.
Employers should also consider prohibiting supervisors and managers from sexually soliciting their subordinates under any circumstances and requiring all employees to report any romantic relationship that they become aware of between a supervisor and their subordinate. Although policies of this nature are not a fool-proof means of preventing employees from being sexually harassed by their supervisors, they can be help identify potential sexual harassment so that it can be promptly investigated and addressed.
Additionally, employers should implement carefully crafted policies to prevent and address workplace sexual harassment. These policies should, at a minimum, clearly state that sexual harassment in any form will not be tolerated, that any incidents of sexual harassment must be promptly reported, and that allegations of sexual harassment will be appropriately investigated and addressed.
Finally, employers should have clear procedures for employees to make sexual harassment complaints which protect their privacy as much as possible and prohibit others from treating them negatively for making complaints. Such procedures can be critical to help employees who have experienced sexual harassment feel comfortable coming forward.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
