Legal Issues: Extra Curricular Office Behaviour

by Jamie Knight and Alex Tinmouth

You have a busy dental practice, which you have been running for about seven years. During this time you have built up a sizeable client base. To help you manage this client base you have retained a number of employees. Included in these employees are your receptionist, a young woman named Jennifer and your dental hygienist, a young man named Harry.

Jennifer is bright and articulate. She has just graduated from university and has decided to spend a year working in a dental office in order to get a “closer look” at dentistry. She may be applying to dental school in the fall. Harry is a hard worker, who seems to have taken a keen interest in Jennifer. He involves her in some of his more routine work in the office. Jennifer seems to appreciate the attention and learns quickly from Harry. As time passes, you notice that Harry is spending more and more time with Jennifer. Harry’s contact with Jennifer was first limited to the office, but you notice that Harry and Jennifer now often have lunch together.

One Friday, while Jennifer is clearing her desk at the end of the day, you overhear Harry asking her if she has any plans for the weekend. Jennifer tells Harry that she hopes to go up north to her boyfriend’s cottage. Harry suggests that Jennifer should “forget about the cottage” and stay in the city with him. Jennifer responds that she has promised her boyfriend, but maybe next weekend she would stay in the city and spend some time with Harry.

The next week, you bump into Harry in the office hallway. He is leaning against Jennifer and has his hands on her hips. When Harry sees you he drops his hands from Jennifer’s hips and Jennifer scurries off. You are concerned — is this a private matter between Harry and Jennifer or is it something that should concern you as their employer?

The legal issue

Sexual Harassment? Not only are you concerned with Jennifer and Harry’s well-being, as an employer you have obligations under the Ontario Human Rights Code (“Code”). The Code protects employees from sexual harassment in the workplace by outlining “every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or by another employee.” This means that employees are protected from improper sexual advances by other employees. It could be that Jennifer is the victim of sexual harassment.

It is not always easy to determine precisely what constitutes sexual harassment. The Ontario Human Rights Commission (OHRC) policy explains that sexual harassment means someone is bothering you by saying or doing unwanted or unwelcome things of a sexual nature. This can include making sexual remarks or suggestions, or unwanted touching. It can also include non-sexual behaviour, where someone is bothering you because of your gender. The Code is not concerned with trivial conduct — it has to be vexatious in nature, although seemingly trivial matters can become vexatious with undue repetition.

Some examples of sexual harassment include:

Comments or behaviour of a sexual nature that are known or should be known to be unwelcome, including banter that features sexual innuendo or double-entendres;

Jokes with punch-lines that are gender based (e.g. “blonde” jokes) or are related to sexual practices (e.g. homosexuality); and

Displaying sexual pictures or drawings, including e-mail enclosures and screensavers.

Not only does the Code prohibit sexual harassment, it also prohibits sexual solicitation. Though often lumped together with sexual harassment, the prohibition against sexual solicitation is a stand-alone provision in the Code. Specifically, the Code provides every person with the right to be free from “a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit… where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.” There is a similar prohibition against reprisal by a supervisory or managerial employee as a result of a sexual rebuff. Because of these provisions, supervisors and managers are held to a higher standard in respect of their conduct toward subordinates in the workplace.

What happens if a complaint is made?

Where a complaint is made to the OHRC about sexual harassment in the workplace, the matter may eventually proceed to a hearing before the Ontario Human Rights Board of Inquiry. The Board of Inquiry will make a finding as to whether or not there was sexual harassment. The Board can impose liability for sexual harassment on both the employer and the employee responsible for the harassment.

Minimizing employer liability for sexual harassment

If the employer knew or ought to have known about the conduct and was in a position to penalize or prevent the conduct, but failed to do so, the Board of Inquiry could find the employer partially liable. In determining whether or not to hold an employer liable for sexual harassment in the workplace, the following criteria are relevant to a Board of Inquiry:

The promptness of the employer’s response to the sexual harassment complaint.

The employer’s awareness that sexual harassment is prohibited conduct.

The seriousness with which the employer dealt with the complaint.

Whether the employer had a complaint mechanism in place.

Education, implementation and enforcement of a sexual harassment policy are fundamental for employers to proactively prevent sexual harassment in the workplace. A sexual harassment policy should address the following:

The employer’s commitment to a harassment-free workplace and lack of tolerance for employees who engage in sexual harassment.

Its application to all employees.

It should contain a definition section that gives employees a clear explanation of what type of behaviour constitutes sexual harassment.

It should make it clear that sexual harassment will not be tolerated and will be disciplined strictly, and should outline the range of discipline.

It should outline the internal complaint procedure.

It should indicate that the employer will investigate all allegations of sexual harassment and will not retaliate against complainants.

It should indicate that the employer would protect the confidentiality of those involved in any investigation, to the extent possible.

What do you do about Harry?

You decide to confront Harry. You approach him in the hall and ask what’s going on. Why did he have his hands on Jennifer’s waist? Harry is a bit startled at first, but then explains that Jennifer was upset. She just found out her brother was quite ill. Harry explains that he and Jennifer have become close over the past few months and he was trying to offer her some comfort. You aren’t sure how to proceed. From your vantage point it looked like Harry was offering more than comfort.

Knowing your legal obligations to provide a workplace that is free from harassment, you decide you can’t let it go based only on Harry’s word. You need to ensure you deal with the matter properly in order to limit liability. You decide to speak with Jennifer directly. The next day you call Jennifer into your office. You ask her if things are going well. You ask her directly if she has any concerns regarding Harry. Jennifer looks at you squarely and tells you that Harry is the most genuine and helpful person she has met in a long time. She cherishes the time he gives her and has absolutely no concerns with respect to his behaviour. So, it looks like you have nothing to worry about. In this case there doesn’t seem to have been any untoward activity. What a relief. Had Jennifer made a sexual harassment complaint and had a Board of Inquiry held that Harry’s conduct did amount to sexual harassment, you may have been personally liable. Without a sexual harassment policy in place, it would be very difficult for you to prove to the Board of Inquiry that you take sexual harassment seriously.

You should take a couple of things away from this experience. In particular, you have to be aware of the possibility that sexual harassment may occur in your workplace and you should take steps to put a proper written policy in place, which you should consistently enforce. No need to panic or to over-react. With calm and dignity, you can ensure that your workplace is a good environment for all of your employees and for you as the employer.

Jamie Knight is a partner in the law firm Fraser Milner Casgrain LLP. Jamie is the Manager of the Employment/ Pension/Research Department in Toronto.

Alex Tinmouth is an Associate in the Toronto office, specializing in employment law.