Employee’s dignity attacked in discriminatory way

The courts have said sexual harassment is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of the harassment.

When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power, they have further indicated.

By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and human being.

Willard owned a 39-unit apartment building in Toronto where he lived with his spouse. Sandy was married with one child and moved into the building in 2016. Eventually, she agreed to provide superintendent duties for the apartment building.

She was responsible for cleaning and maintaining the building, including common areas. Shovelling, salting, grass cutting as well as rent collection and tenant complaints were part of her duties. She did not receive payment for these services but rather a rent-free apartment at a value of about $1,300 per month.

The Human Rights Code prohibits discrimination of all kinds within the context of “employment.” Employment has always been interpreted very broadly by the Ontario Human Rights Tribunal, and although Sandy was not on any payroll, she fit the bill.

All went well with Sandy’s arrangement until a couple of years later when she got pregnant. When she was about two months along, Willard had a meeting with her and said “Oh my gosh, your belly grew quite a lot.” He also said “People say that when a woman’s belly grows, her vagina also grows.”

Willard also asked Sandy to let him see her belly, but she refused and left the office. She found the comments vulgar and offensive. Throughout her pregnancy, Willard would make comments about the size of her belly.

Sandy eventually mentioned that once she had the baby, she would not be able to carry out her physical duties but could still collect rents and deal with tenant complaints. Willard told her she needed to hire somebody else to help her or get her husband to fill in for her.

Two weeks before she was due, Sandy broached the same conversation with Willard, but there was no change in his position. He told her that if she couldn’t do the job, she would have to leave her apartment.

The adjudicator in this case found that Willard had engaged in sexual harassment in that he had exhibited a course of conduct and comments toward Sandy that he knew or ought reasonably to have known were unwelcome and related to her sex/gender.

Collecting rents and dealing with tenant complaints were a very minor part of Sandy’s part-time job. The primary focus of the job was cleaning and maintenance duties.

The employer is not required to fundamentally change working conditions and the duty to accommodate does not require an employer to assign the essential duties of an employee with a disability to other employees or hire an extra employee to perform those essential duties. In addition, the employer does not have to change the essential duties of the position.

The adjudicator found that Willard had not breached his duty to accommodate the pregnancy. The suggestion that Sandy’s husband help out was reasonable. So was the idea of her hiring somebody to fill in for her in exchange for her free rent.

Although sexual harassment was found, the adjudicator also decided that this situation was at the very lowest end of the spectrum of sexual harassment cases. Willard was ordered to pay Sandy $7,500. Oddly, the decision doesn’t tell us if Willard made Sandy and her family move out during her pregnancy or not.

All sexual harassment is bad.

There are, however, some cases that are worse than others. Sandy’s dignity as an employee and as a human being were attacked in a discriminatory way. Unfortunately, the Ontario Human Rights Tribunal has seen far worse cases and the general damage awards in those cases have reached more than $40,000. The idea of putting a price tag on human dignity is troubling but unavoidable.

This article was originally published by The Hamilton Spectator.