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By Tony Poland, LegalMatters Staff • Toronto employment lawyer Ellen Low says she is hopeful a recent Human Rights Tribunal of Ontario (HRTO) ruling will lead more victims of sexual harassment in the workplace to pursue their complaints with the tribunal.
Low, principal of Ellen Low Employment Law, says NK v. Botuik is a significant and “succinct analysis from the HRTO.”
The tribunal awarded $170,000 to a woman who had been the victim of “egregious sexual harassment and solicitation” by her supervisor over an extended period.
“It’s a really helpful and comprehensive decision,” Low tells LegalMattersCanada.ca. “This case makes me optimistic. It is a solid remedy. We may be able to use that analysis in other cases. The amount awarded is so high that it may lead people to think more seriously about complaints rather than just throw their hands up their hands thinking it’s not going to be worth it.”
‘Exceptionally damaging affront’
The tribunal found the conduct of a group home supervisor was “an exceptionally damaging affront” to the victim, who was a part-time direct care worker.
“The evidence presented to this effect was abundant, clear and compelling,” vice-chair Darren Thorne wrote in his ruling. “The applicant was coerced into going along with the relationship.”
The tribunal found the victim, who was newly hired and on probation, was “driven by the grinding and overwhelming fear of losing her employment, and not being able to provide for herself and her son.”
“The applicant was in such emotional turmoil that she simply also gave in to this next step in the sexual exploitation,” he writes.
Harassment became more persistent
The HRTO was told the woman at first resisted her supervisor’s advances or touching, “but that he very quickly began to ignore her resistance and become more persistent and forceful.”
For the woman, who was a victim of sexual assault and exploitation growing up, the situation reminded her of “having a man take advantage of her and make her do what he wanted,” the tribunal heard.
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“She felt lost, dirty and ‘not good about myself,’ but that she had to go along with it. She reiterated that somehow, it felt familiar: to be treated this way by a man who had more power and control and where she had none,” according to the decision.
Afraid of losing her job, the woman finally “gave in,” the HRTO heard, and “just ‘let it happen,’ in the sense of going along with the relationship.”
Imbalance of power
Low says the woman’s “personal background, including her vulnerability, really made the conduct even more egregious because of the imbalance of power.”
She says the case is an example of the difference between consent and acquiescence.
“This is a helpful decision in terms of understanding the idea of consent,” Low says. “We should be thinking about consent with the view of what constitutes enthusiastic consent. Just because she goes along with it or that people believe they are friends in the workplace, that doesn’t indicate a consensual relationship.”
She notes that the HRTO awarded $70,000 more than the woman sought, which is rare.
“It’s unusual for the tribunal to award more than what the complainant has asked for,” Low says. “However, when you look at the analysis, it’s clear that there’s precedent for doing that.
“It goes to the issue of how to quantify this type of violation. How do you measure this type of power imbalance between supervisors and managers and employees?”
Awards have been increasing
She says tribunal awards have been increasing in recent years “but they’ve been going up relatively slowly.”
“One of the criticisms I and others have had of the HRTO has been that damage provisions have been extremely low,” Low says. “There has been a fair amount of discussion within the bar about whether those numbers should be increased, and should they be trending upward.”
Higher cost awards may encourage more people to file HRTO complaints,” she says.
“You’ve got to be strategic in deciding where you bring these types of claims because legal fees are not awarded at the tribunal so you may be out of pocket for those,” says Low. “When it’s egregious, when it does through an HRTO hearing and there’s a comprehensive review of the damages aspect, that gives me optimism.”
