Paralegal awarded $22,000 in harassment case

Paralegal awarded $22,000 in harassment case
Nicole Simes of MacLeod Law Firm says only with even higher damage awards that employers and managers will consider the financial cost of engaging in, or not preventing, harassment in the workplace.

A paralegal who was sexually harassed by an employer at the legal services business she had just started working for — and who had evidence of the harassment via a series of text messages — has been awarded $22,000 plus back pay by the Human Rights Tribunal of Ontario.

“An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization,” wrote adjudicator Ken Bhattacharjee in deciding Anderson v. Law Help Ltd. and Giuseppe Alessandro

The applicant was also awarded $5,400 for wages withheld from her as reprisal for refusing to enter into a sexual relationship with the individual respondent. The applicant began work at the law office in January 2014 and left two months later.

Practitioners working in the area of human rights claims hailed the decision and pointed to the value of digital technology in providing evidence during hearings.

“This is an example of the type of conduct that many women face in the workplace,” Nicole Simes of MacLeod Law Firm in Toronto told Legal Feeds. “Solicitation from an employer, even where not accompanied by sexualized language, can deeply affect an employee’s sense of dignity and self-worth.

“I was glad to see that the award for damages was over $20,000. However, it is only with even higher damage awards that employers and managers will consider the financial cost of engaging in, or not preventing, harassment in the workplace.”

The applicant was also awarded $2,000 for future counselling sessions. The harassment did not include physical touching.

Kate Sellar, a lawyer at the Human Rights Legal Support Centre in Toronto, told Legal Feeds that the digital evidence — which showed the respondent soliciting the applicant through a series of text messages — was useful in determining the outcome of the case.

“In sexual harassment cases, text messages can be fabulous evidence,” Sellar says; “they can take the focus away from the traditional ‘he said/she said’ credibility battle about the facts that has kept so many women from coming forward over the years.” However, Sellar notes, the Human Rights Tribunal has issued many decisions finding sexual harassment survivors credible even without “smoking gun” evidence.

The phone texts as they appeared in the decision showed two key things, she adds. “First, they showed how people who are sexually harassed in the workplace are often in an almost impossible situation. The applicant in this case found ways of rejecting advances via text … on more than one occasion. That’s not always easy to do, especially when faced with such a big power imbalance in the workplace.”

Second, she said, the applicant’s texts to her friend about the harassment “were contemporaneous and showed how much she needed her job but also how quickly the situation became intolerable and toxic.”

One factor in the outcome for the individual respondent was that neither he nor his organization were represented by legal counsel before the tribunal. “We see it repeatedly; typically there are higher awards if the employer is unrepresented,” Simes says.

The individual respondent and the organization respondent were held to be “jointly and severally liable for all of the . . . violations of the Code,” the adjudicator wrote, since the individual respondent was the president, secretary, treasurer and manager of the organization respondent, Law Help Ltd.

A 2015 sexual harassment case, O.P.T. v. Presteve Foods Ltd. awarded a Mexican migrant worker $150,000 in compensation for injury to dignity, feelings and self-respect. That case involved multiple sexual assaults and “appalling facts,” says Simes, but “because that award was so high, it gave tribunals more scope for increasing damages — because of the high-water mark.”

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