An employee in a managerial role is found to be engaging in sexual harassment: what is a reasonable punishment?

| May 15th, 2017 | No Comments »

When an employee is in a supervisory role and there is adequate evidence that the individual engaged in acts of sexual harassment towards other employees, then the employer’s obligation to its workers leaves limited options. Termination may be justified punishment and also the only option available to the employer due to the obligation to protect workers from sexual harassment.

Ontario Human Rights Code: Sexual Harassment

Of course, there are varying degrees of sexual harassment. Legally, sexual harassment is defined under the Ontario Human Rights Code as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” By definition, there must be a course of action here that is unwelcome, which implies that single incidences may not require harsh punishment. However, if the conduct is serious, then termination is warranted.

Individuals in managerial roles are further prohibited by such behaviour because human rights law specifically prohibits sexual solicitation or advancements by managerial personnel. The Ontario Human Rights Code states that individuals in a workplace are entitled to be free from sexual solicitation or advancements from those in a position to deny or provide an advancement or benefit within a working relationship. In other words, those that possess the authority to grant or deny workers benefits or advancement in their careers are explicitly prohibited from acts of sexual solicitation and/or advancement upon workers in the workplace. This includes supervisors, managers, employers and so on.

Case Example: Gonsalves v. Catholic Church Extension Society of Canada

To illustrate the above, take the case of In Gonsalves v. Catholic Church Extension Society of Canada. Here, Gonsalves was the financial manager and supervised 10 female employees. Gonsalves was accused by a number of these workers of inappropriate comments, touching (which was also criminal), and using sexually charged language. It was also apparent that these workers were afraid to come forward because they were concerned about their job security. The president (the priest) heard these allegations and immediately fired Gonsalves, even though this behaviour ceased months prior. Further, there was no sexual harassment policy nor established rules of discipline and/or investigations.

The court ruled that termination was the right punishment due to the seriousness of the sexual harassment that took place. Although there was not policy in effect, this was a zero-tolerance situation. Being in a supervisory role, Gonsalves could not be allowed to continually supervise employees in light of the misconduct. Further, one particular employee was threatened by Gonsalves to refrain from reporting the sexual advancements he had made towards her. This seriously impacted this individual and continuing to employ Gonsalves would cause this individual significant distress. The employer here had no other option but to terminate Gonsalves out of an obligation to provide a safe workplace free from sexual harassment.

Final Thoughts:

It is important to be aware that individuals in a managerial or supervisory role hold a significant amount of power over regular employees, so termination for sexual harassment may be the only option for employers. Employers are obligated to provide a workplace free of sexual harassment, so It is important to respond to any allegations against management or supervisors appropriately.  Proper investigations and precautions to protect those employees under the supervision of the accused should be taken as soon as possible because these employees are most vulnerable.