I can imagine many of my friends and acquaintances rolling their eyes when reading some of the recent headlines about sexual harassment in an employment law context. Take the following examples: “Employers Could be Held Liable for Improper Use of Pronouns in the Workplace” Or “Adamant refusal to apologize for sexual harassment justified termination from employment: court” Or “A little slap on the butt at work is a BIG deal” or “Single incident of sexual harassment warrants termination”.
‘Based on these headlines you may think that courts and/or employers have gone too far in disciplining these sexual harassers and that the complainants involved in these cases are just overreacting and being oversensitive. Can someone really be fired just because they used improper pronouns or refused to apologize? What about that slap on the butt? Is that enough to justify the immediate dismissal of an employee? Why are courts upholding these dismissals?
In my article entitled Can An Employee Get Fired for One Incident of Sexual Harassment? I described the case of Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460, a case about a “star employee” who had worked for the employer for 12 years and was fired after having slapped his co-worker’s butt. The legal community was shocked when this employee lost his court case for wrongful dismissal against his employer. Had he successfully sued his employer for wrongful dismissal he would have been entitled to over $100,000 in damages. The court looked not only at the slap on the butt incident but at the context surrounding the incident. The employee in question had behaved the way he did 8 days after having participated in a training session about harassment offered by the employer. When the harassing employee learned of the complaint against him, he began riling up fellow employees at work and they turned on the complainant. He did things like walk by her office making butt-slapping gestures to mock her and his buddies would laugh. He also filed a complaint against the complainant for having punched him in the arm which was clearly retribution for her complaint as the alleged incident, which she readily admitted to, had occurred many months prior to the butt slapping incident. By these actions, the employee demonstrated that he had no respect for the complainant or the harassment policy of the employer and that his behaviour had not improved. As a result, the court concluded that there had been a breakdown in the employer/ employee relationship.
In a similar case, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728 The employee in question had made 4 comments of a sexual nature to his female colleague. These included asking her if she had “danced on the tables” at a company function, suggesting that she “sit on (another employee’s) lap and ask him nicely”, when she told him about her gardening on the weekend he remarked, “any reason for you to bend over and go down on your knees” and the final straw, was when he stated to her “of course you are on top, you are getting pumped from under the skirt till you can't stand anymore” while thrusting his pelvis up and down. The complainant told him twice that his comments were unwelcome, as did his supervisor. She finally reported him to HR and an investigation ensued which confirmed that the comments did constitute sexual harassment and created a toxic environment. The employer then sent the employee a letter requiring that he undergo special training about harassment and that he apologize to the complainant. Instead, his lawyer wrote to the employer denying liability or that the comments were of a sexual nature and stated that an apology would be “inappropriate in these circumstances”. The employer then terminated the employee as a result of a "breakdown in their relationship". At the initial trial, the judge found that the employer was not justified for firing the employee for simply having refused to apologize given the length of his service and previous record.
The Ontario Court of Appeal disagreed with the Trial judge and found:
"The only conclusion the appellant (employer) could reach was that there was a complete breakdown in the employment relationship as (i) he was either unwilling or unable to understand the purpose and effect of the Workplace Harassment Policy and to take its requirements seriously and (ii) he was unwilling to accept the discipline imposed on him as a consequence of his misconduct of sexually harassing a co-worker. As a result, the appellant could have no Page: 26 confidence that the respondent would not continue with the same type of misconduct in the future."
The third case I want to highlight is that of EN v Gallagher’s Bar and Lounge, 2021 HRTO 240 the Human Rights Tribunal of Ontario confirmed that the owner of the bar had discriminated against the employees, who identify as a gender-queer and/or non-binary trans persons. While they did allege that the employer refused to use they and them (preferred pronouns) when speaking to them, that is not what motivated them to bring a claim against this employer. Instead, it was an incident where one of the wait staff overheard the owner who was socializing with some customer say “I have four trannies in my kitchen!” in a joking manner. When they confronted their employer about this comment he denied having said it and told them they were all overly sensitive and that he felt he had to walk on eggshells around them. All four employees reported feeling unsafe and unwelcome in their workplace after that and eventually decided to quit.
The common theme amongst these cases, if you look at the context, is that the complainants were made to feel unsafe and unwelcome in their workplace by behaviour that could easily be described as “bullying”. It was not only as a result of the sexual harassment but also the inappropriate response of the harasser to their reporting it and to disciplinary measures by their employer. Employers have a legal duty to ensure that this type of toxic work environment does not develop in the first place. One of the tools employers have to prevent harassment is to offer training to employees on how to prevent and address sexual harassment. The Legal Clinic offers this type of training to employers and employees in the region for free. If you are interested in hosting a training please call The Legal Clinic at 613-264-7153 or email me at langana@lao.on.ca.