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…
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:
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.
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 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 have 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 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. For a sample sexual harassment policy you can visit this webpage: http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0
If you need help constructing your own sexual harassment policy and becoming / remaining compliant with the Act, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.