Precedent-setting fine emphasizes need for sexual harassment policies

A $200,000 fine for an employer who sexually harassed workers holds important lessons about organizational culture, vulnerable workers, and sexual harassment programs. WSPS consultant Margaret Cernigoj offers timely advice in the wake of this case and in light of Ontario's action plan to curb sexual harassment.

Case details

In a landmark decision issued by the Human Rights Tribunal of Ontario, two sisters from Mexico were awarded a total of $200,000, almost double the previous record, for what the tribunal called "unprecedented" sexual misconduct by their employer (O.P.T. v Presteve Foods Ltd.).

The sisters worked at a fish plant as temporary foreign workers, enduring sexual solicitations and advances from an employer who threatened to send them back to Mexico if they didn’t comply. One sister was sexually assaulted multiple times, and the other deported after rejecting the employer.

The tribunal found the employer guilty of sexual harassment, creating a poisoned work environment, and discriminating against the sisters because of sex, contrary to the Ontario Human Rights Code. It ordered the employer to pay $150,000 to one sister and $50,000 to the other for injury to their dignity, feelings and self-respect.

What the Occupational Health and Safety Act says

In addition to being charged under the Human Rights Code, Ontario employers can be charged under the act for harassment committed by them or an employee. The act contains three requirements for employers:

• have a policy in place to address violence and harassment
• develop a program to support the policy
• provide training to everyone in the workplace

While these provisions already include sexual harassment, says Cernigoj, upcoming changes to the act will spell this out more clearly and include a code of practice.

Lessons learned

The case at hand, says Cernigoj, teaches us important lessons about

• workplace culture. "Employers need to look at what the tolerance is for inappropriate behaviour in their workplace. If they tolerate, or turn a blind eye, to other forms of harassment or the superstar employee who belittles everybody, then what's the tolerance for sexual harassment?"
• vulnerable workers. Be aware of workers who are most at risk, such as new workers, workers who may lack English-language skills or a clear understanding of their rights, people in support roles, younger workers, and people returning to work.
• building trust. "Employees perceive what they see. So if the employer is slow to respond or doesn't respond to inappropriate behaviours, employees will either not report or just leave."
• policy vs. program. "It's important to understand the difference. Everyone can have a poster on the wall, but it's the practices and programs that matter - how to report, how complaints are investigated, roles and responsibilities, consequences. Do you follow through?"

Cernigoj offers these suggestions on how to maximize the effectiveness of your sexual harassment program:

• Find out what's going on in your own workplace. "Ask pointed questions, for example, on employee engagement surveys. Have you experienced or know of anyone who has experienced sexual harassment in our workplace? Have you witnessed sexual harassment?"
• Be clear about inappropriate sexual behaviour. "Identify it in detail. We don't see sexy posters on the wall anymore, but would we see leering? Inappropriate jokes? Catcalling? Again, ask employees what they view as inappropriate sexual behaviour."
• Write your policy and program in clear, user-friendly language. "If you have workers from different cultures, have someone from the same culture explain the documents and program."
• Make reporting easy. "Develop a reporting structure sensitive to sexual harassment and confidentiality, and that supports the individual reporting and the alleged offender."
• Train repeatedly. "Keep the topic on the table. Proactive employers provide refresher training annually."