Valentine’s Day has us thinking about romance. In the mind of an employment lawyer, the leap from romance to harassment is a short one, and so that is what our post is about today. Harassment is not a new topic for us. You can read our past posts on sexual harassment, employer obligations regarding harassment and the time we waste on sexual harassment for a primer on the subject.
Today we are going to take a look at what comes after the harassment has been reported, investigated and substantiated. What are the consequences of harassment?
The Ontario Health and Safety Act requires that workplaces have harassment policies and plans in place in order to prevent and address workplace harassment. When harassment is reported or comes to light, either formally or informally, the employer has an obligation to investigate. What that investigation will entail depends on what the complaint consists of. The investigation should be conducted by an independent person. This can, in some cases, be someone internal as long as they were not involved in the harassment situation in any way and as long as they are not somehow under the thumb of either party. In situations where the complaint is complex or involves multiple people, organizations often choose to bring in a truly impartial third-party investigator. The investigation will determine whether or not the allegations of harassment are substantiated.
When a Harassment Allegation is Substantiated
Once the investigation has determined that the allegation of harassment is substantiated, what comes next? The employer will need to determine how to appropriately deal with the harasser. Depending on the situation, this could mean training, an apology, a re-organization of their role or reports. In some serious situations, harassment may warrant a termination with cause.
What About the Victim?
Harassment allegations often surface once the victim of harassment has left the workplace. They may come to the employer’s attention via a demand letter from employee counsel. This raises the question, is harassment worth anything?
The tort of harassment was recognized in the 2017 Ontario Superior Court case Merrifield v. The Attorney General. In this case, Mr. Merrifield was awarded $100,000 in general damages related to the harassment and intentional infliction of mental suffering he experienced at work.
Successfully establishing the tort of harassment requires that the following be proven:
- The conduct of the defendant towards the plaintiff was outrageous;
- The defendant intended to cause emotional distress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;
- The plaintiff suffered from severe or extreme emotional distress; and
- That the outrageous conduct of the defendant was the actual and proximate cause of the emotional distress.
This legal test for harassment is similar but tougher than that of intentional infliction of mental distress. The conduct must be “outrageous and flagrant” and the mental distress must be visible and provable.
While this is a developing area of law, employers may be vicariously liable for employee on employee harassment. It is essential that employers have a proper workplace harassment program in place. Individual employees may also be liable for their harassing actions in the workplace.
Victims of harassment, that is not related to a Human Rights Code ground can turn to the courts to recover from harassment. However, the bar to recovery is, thus far, very high.