The generally accepted rule regarding sexual harassment in the workplace is: don’t do it.
Employees have a duty not to engage in inappropriate behaviour in the workplace, and employers have a duty to create and implement policies with respect to workplace harassment. Supervisors, who are responsible for implementing these policies, can be held to a higher standard of behaviour than their subordinates.
This article will review the special standards that attach to supervisors’ behaviour, and the consequences of failing to meet those standards.
a) Supervisors have a duty to enforce Workplace Harassment Policies
Workplaces in Ontario with more than five people are required to post and implement a policy with respect to workplace harassment, per s. 32 of the Occupational Health and Safety Act. Supervisors have a duty to implement those policies in the workplace.
In Bannister v General Motors of Canada, Bannister was a supervisor who was terminated for cause. The court found that Bannister had a habit of making inappropriate comments, telling sexual jokes and stories, and trying to kiss his female coworkers and subordinates. The court emphasized that the standard of behaviour was higher for the supervisor, because he had a duty to implement and enforce the harassment policy:
[34] A supervisor who permits such an atmosphere as the trial judge describes to develop, and then participates in the exchanges as much as anyone else, is a supervisor who is not performing his duties.
The supervisors do not only have a duty to refrain from engaging in harassing behaviour, but they also have a duty to prevent it. The court ruled that summary dismissal of the supervisor was justified.
b) Supervisors can’t use the office culture as an excuse to misbehave
Supervisors cannot claim that their inappropriate behaviour was merely their way of engaging in a bawdy office culture.
In Alleyne v. Gateway Co-Operative Homes Inc., Alleyne, a supervisor, was terminated after complaints were made about his behaviour. The court found that Alleyne participated in the office’s culture of sexual innuendos, not-so-innocent back massages, and kissing. The judge ruled that summary dismissal was justified particularly because of the supervisor’s managerial role. Supervisors have a dual responsibility, consisting of both:
[39]a duty to employees to protect them from offensive conduct and to the employer to shield it from civil liability as the result of actions brought by employees victimized by sexual harassment.
By engaging in harassment, rather than curbing the office culture, the supervisor managed to violate both of those duties at once. His claim for wrongful dismissal was dismissed.
Similarly, in Fleming v. Ricoh Canada Inc., the court found that sexual jokes were a big part of the office culture. A new supervisor came into the office and began speaking very crudely, using sexual language to demean his subordinates. His excuse? He was reluctant to take away the employees’ banter. The judge said that it doesn’t matter whether there was a pre-existing culture of innuendo; there was no justification for the manager to start participating in the bad behaviour.
Managers cannot use their employees’ bad behaviour as an excuse for behaving badly themselves; it is the managers who are responsible for curtailing the bad behaviour of their employees to ensure a safe and healthy workplace.
c) Supervisors cannot be bystanders
An employer may be liable for allowing a poisoned work environment to fester if management knew, or should have known, about the inappropriate conduct and failed to take steps to address it. Adjudicators have also affirmed that supervisors have a duty to intervene when witnessing incidents of inappropriate sexual behaviour.
In McWilliam v Toronto (City) Police Services Board, the Ontario Human Rights Tribunal found that McWilliam suffered a long pattern of degrading sexual comments and behaviour while working for the Toronto Police. McWilliam, a police constable in a male-dominated police force, was often the subject of crude sexual comments made by her coworkers and higher-ranking officers. One superior officer set the background of his work computer to a picture of McWilliam in a bikini. The most egregious offence was when a superior officer forcibly kissed McWilliam in a bar in front of other officers. The other superior officers all testified that they had no recollection of the night in question at all. The adjudicator expressed serious doubts as to the credibility of the other superior officers – it seemed highly unlikely that they could forget an event like that.
The tribunal awarded the applicant $85,000 as compensation for the injury to her dignity. $10,000 of those damages were payable directly by McWilliam’s superior officer. Much of this liability stemmed from the fact that it was the applicant’s supervisors who were participating in the harassment, and her other superior officers who refused to help the applicant. The inactions of the various supervisors were deemed to contribute to a “poisoned work environment”.
In an Alberta case, Christie v CitiFinancial Canada Inc., Christie was a supervisor who attended a rowdy workplace conference. At the conference, a party was held in one of the attendees’ hotel rooms. One of the employees at the conference stripped down to just his cowboy boots and his cowboy hat, which he alternately wore on his head and over his groin. The employee danced around in the nude and ‘puppeteered’ his genitals into various shapes. The employee lay down on top of a female colleague while nude. Christie was terminated without notice for failing to do more to intervene in the employee’s outrageous behaviour and failing to follow up on and report the incident after the fact.
At trial, the court found that Christie had taken steps to prevent the behaviour, and so the termination was wrongful. Christie had followed his puppeteering subordinate to keep an eye on him and had tried to stop the employee when he began to strip. Christie told the employee to get dressed, took him back into the room when he attempted to leave in his underwear, and enlisted a co-worker to help calm the employee down. Had he not done so, the termination without notice likely would have been justified. The lack of a proper report to human resources was found to be a simple error in judgement, based on Christie’s (incorrect) assessment that he could handle the situation by himself.
Supervisors’ failure to act can reflect negatively on the employer, and result in considerable cost consequences as in McWilliam. Employers may be justified in imposing serious disciplinary measures, up to and including termination, for supervisors who allow sexual harassment to go unchecked.
d) Supervisors may be personally liable for their bad behaviour
Supervisors do not just risk disciplinary action when they engage in abusive behaviour in the workplace. Ontario case law has clarified that supervisors who harass their employees may be personally liable for the damages suffered.
In Boucher v Walmart, the court found that Boucher was bullied by her supervisor, Pinnock, for months. Boucher had refused Pinnock’s request to falsify some records, and in retaliation, Pinnock began speaking to her disrespectfully using a lot of profanity. Boucher met with management to complain about Pinnock’s behaviour, and management informed Pinnock that this meeting had occurred. In retaliation, Pinnock subjected Boucher to a “torrent of abuse”. He would berate and swear at Boucher, calling in other employees so that they could watch him demean her. When Boucher complained to Walmart, they told her that her complaints were unsubstantiated without conducting a proper investigation.
Boucher was successful in suing Walmart for constructive dismissal and punitive damages. Boucher also obtained an award for $100,000 in damages against Pinnock for the tort of intentional infliction of mental suffering. The court found that Pinnock intended to cause harm to Boucher and was overjoyed when she resigned. Pinnock was also liable for $10,000 in punitive damages.
In McWilliam, discussed above, the HRTO found that there was an overall poisoned work environment in McWilliam’s police platoon. One sergeant in particular was named in the human rights complaint. This sergeant suggested daily that he pleasure McWilliam orally, whispered in her ear that he wanted to lick her, and pretended to masturbate in the lunchroom. This sergeant, who was McWilliam’s superior officer, was found to be personally liable for $10,000 in compensation for injury to dignity, feelings and self-respect.
For supervisors, the consequences of harassment may go beyond disciplinary action or termination of employment. Damages are awarded against individuals in appropriate cases. In almost all of the cases where supervisors are ordered to pay, so too are the employers.
e) One strike policy for supervisors
When an ex-employee sues for wrongful termination after being terminated for bad behaviour, the court will usually ask whether there were lesser disciplinary measures that could have sufficed. This is especially true where the conduct in question was the employee’s first offence, in particular when the employee has a good work record. However, for sexual harassment, the recent Ontario Court of Appeal decision in Render v. ThyssenKrupp Elevator (Canada) Limited confirms that the Courts take such conduct very seriously. Render had been a model employee for thirty years, with no prior complaints. The court found that the office environment included some inappropriate jokes between the men; they would make sexist and offensive comments about their female co-worker, and the men would slap each other on the rear and say ‘good game’. One day, Render went into the office of one of his female coworkers and began behaving wildly inappropriately. He made lactation jokes when his colleague’s shirt got wet, put his face near her breasts, and, as he left, slapped her on the rear. Render was summarily dismissed.
The court weighed Render’s years of experience and relatively blameless conduct against the severity of his present misconduct, his responsibility for implementing the sexual harassment policies, and his position as a manager. The judge decided that despite Render’s spotless work record, summary dismissal had been an appropriate response. As long as the employer had turned its mind to the possibility of lesser forms of discipline, it was free to terminate Render for cause.
Note that in the Render case, the Court also concluded that the conduct was “just cause” but did not meet the more stringent standard of “wilful misconduct” under the Employment Standards Act, 2000. For more details on this case, please see our prior publication.
f) Conclusion
Adjudicators have made it clear that supervisors are held to a different standard than their subordinates. Supervisors are responsible for implementing and upholding sexual harassment policies. Supervisors cannot use ‘office culture’ as an excuse to bring sexual jokes or innuendo into the workplace. Where the office culture is inappropriate, the supervisor must change the culture; the culture must not change the supervisor. Supervisors face harsher consequences for harassment in the work place; they could face immediate termination and have to pay thousands in compensatory and punitive damages.
When it comes to supervisors, the general rule on sexual harassment is: don’t do it and don’t let it happen.