What’s the potential cost of a workplace sexual harassment claim?

Daniel Lublin is a partner at Whitten & Lublin Employment Lawyers, Toronto

It is not surprising that my law firm now fields more calls about sexual harassment claims than ever before. With recent workplace sexual harassment cases making headline news and the proliferation of written sexual harassment policies, Canadians are now much more mindful of workplace conduct that may cross the line – and the legal liability that can flow from it.

However, what usually surprises both employers and employees is the monetary value that human rights tribunals are ascribing to these cases.

How much are workplace sexual harassment claims actually worth?

Lost wages

Unlike wrongful dismissal lawsuits, where courts award compensation for lost wages that are proportionate to an employee's age, tenure and position, human rights tribunals pay little regard to precedent and these traditional factors.

Instead, these tribunals have the power to award employees compensation for all lost wages that would not have occurred but for the discrimination. In sexual harassment cases, these damages can be significant.

In one recent case that provides a good example, a tribunal awarded a hair stylist one year's salary after she was sexually harassed and then fired. She had only six months' tenure. If she were not sexually harassed but still fired, her claim would only have been worth a few weeks' pay.

The ability and willingness of human rights judges to award lost wages for an employee's entire period of unemployment significantly increases the risk for employers when proceeding to hearings in these cases.

Distress

In addition to lost wages, workplace sexual harassment victims can also claim compensation for mental distress and violation of their right to be free from discrimination.

These payments are known as general damages, and they do not require an employee to leave his or her job to be eligible.

What is the going rate for general damage claims in workplace sexual harassment cases? In one recent case that examined a number of precedents, the judge noted that awards of general damages have typically ranged from $12,000 to $50,000.

Where there are a few incidents of harassment of a less serious nature that generally do not include physical touching and no loss of employment occurs, damages should be at the lower end of the spectrum, reasoned the judge. However, in that very case, an employee accused her boss of hugging her so tightly she could feel his genitals pushed against her, rubbing his hand up and down her leg, kissing her and threatening her employment.

Interestingly, the judge awarded her only $20,000 in general damages, finding that this behavior landed in the middle of the spectrum of seriousness.

In another recent case, the owner of a small company mistakenly believed that his sexual interest in a female subordinate was mutual and tried to kiss her, and she promptly rebuffed him. Afterward, he treated her so differently that she left the job and never returned. She was awarded $28,000 in general damages.

In another case where a police sergeant called a female officer a "bimbo" and expressed interest in her "cookie," a human rights tribunal awarded the officer $20,000 for her mental distress.

These damages, while not insignificant, remind us that unlike in some other jurisdictions outside Canada, a jackpot award for workplace sexual harassment is unlikely. However, exceptional facts can result in exceptional payments.

One recent Ontario case has moved the issue toward more considerable damages for sexual harassment. The owner of a food processing plant was ordered to pay $150,000 in general damages to a migrant worker after he forced her to perform oral sex on several occasions and used the threat of deportation to force her to have intercourse with him. In that case, the judge sent a strong message that, in extraordinary cases, damages awards can go beyond the customary range seen in other matters.

In Ontario and some other Canadian jurisdictions, human rights tribunals also have the authority to award public-interest awards and future-compliance remedies. Employers are commonly ordered to undergo human rights training, and create or revise human rights policies and post them in the workplace. Most Canadian jurisdictions empower workplace tribunals to make any award necessary to stem further discrimination.

In my own cases, I routinely request an order that employers guilty of discrimination publicly apologize for their actions as the threat of a public shaming often far outweighs the cost consequences of a negative damage award. This has not yet occurred, but that does not mean it won't happen in the future.

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