Victims of sexual assault at work can sue their attacker and their employer for damages (i.e. money). Employers can be vicariously liable for the actions of colleagues, supervisors, managers and owners who sexually assault other employees.
Human Rights Damages for Workplace Sexual Assault
Rules about sexual assault at work generally fall under the law of sexual harassment. Sexual harassment in employment is prohibited in Ontario by the Ontario Human Rights Code:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.Section 7(2) of the Human Rights Code
Sexual assault is a form of sexual harassment under the Human Rights Code. Think of the law of sexual harassment as a spectrum. Sexual harassment runs the gamut from sexual assault, such as coerced intercourse to unsolicited physical contact to sexual harassment consisting of persistent propositions to more subtle conduct such as gender-based insults and taunting (Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT)).
Sexual assault is, of course, at the highest end of the spectrum of sexual harassment. Because of the seriousness of sexual assault, victims of sexual assault can be awarded significant damages awards, including up to hundreds of thousands of dollars.
Claims for damages for sexual assault under the Human Rights Code can be pursued before the Human Rights Tribunal or the civil courts in Ontario. The Human Rights Tribunal is a cheaper, sometimes faster avenue, while the civil courts can handle multiple claims, for example, for both damages for sexual assault and constructive dismissal.
To be awarded damages for sexual assault under the Human Rights Code, an employee must prove that (1) the defendant was her employer or another employee; (2) the defendant sexually assaulted her by engaging in physical conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) the defendant sexually assaulted her in the workplace, and (4) the defendant assaulted her because of sex. Concerning the fourth part of this test, the very nature of sexual assault can be sufficient to establish that sex was a factor in the assault. See Friedmann v. MacGarvie, 2012 BCCA 445 (CanLII).
In one case, NK v. Botuik, 2020 HRTO 345 (CanLII), an employee was awarded damages of $170,000 because the employee’s supervisor engaged in forcible sexual intercourse with her against her will.
While the sexual assault did not take place on-site at the workplace, it came about as a consequence of the forced relationship between the parties that resulted from the continued leverage over the applicant that the respondent wielded as her workplace superior.
In another case, J.D. v. Ultimate Cut Unisex, 2014 HRTO 956 (CanLII), the Ontario Human Rights Tribunal awarded an employee $40,000 for, among other discriminatory conduct, sexual assault.
The co-owner of a salon touched the victim, Ms D, sexually while she sat in the reception area, massaging her shoulders and back, and touching her legs. She told him that she did not like people touching her, but he persisted. She would try to avoid him by standing up, but he then often slapped her backside, despite her repeated warnings that this was unwelcome and highly inappropriate. His response was usually a laugh and a comment about him just being playful or “who he was.”
Employees who are sexually assaulted at work are advised to speak to a lawyer as soon as possible. The Human Rights Code has a one-year limitation period for all claims.
Civil Remedies for Workplace Sexual Assault
While a majority of employees who are sexually assaulted at work sue for human rights damages, there is another option. Any individual, including an employee, can sue their attacker in the civil courts for the tort of “battery.”
Battery occurs when a person intentionally causes harmful or offensive contact with another person without her consent. Battery is an intentional tort, meaning that the attacker must intend the consequences flowing from his act. Sexual assault clearly falls within this definition and is thus suitable for the tort of battery.
Factors to consider when awarding damages for sexual assault in a civil lawsuit for battery are listed in Zando v Ali, 2017 ONSC 1289, a decision about sexual assault by a colleague the plaintiff had invited into her home. In that case, the defendant attempted to force intercourse upon the plaintiff and eventually masturbated in front of her against her will in her home. The trial justice, at para 93, listed the following considerations in calculating the amount of damages to award her:
- The circumstance of the victim at the time of the events, including factors such as age and vulnerability;
- The circumstances of the assault(s) including the number, frequency and how violent, invasive, and degrading it was;
- The circumstances of the defendant, including age and whether he or she was in a position of trust; and
- The consequences for the victim of the wrongful behaviour, including ongoing psychological issues.
The trial justice held that the range of damages in similarly serious sexual assault cases was $144,000 to $290,000. The Court of Appeal affirmed both the list of considerations and the range of damages (Zando v Ali, 2018 ONCA 680). The Court of Appeal also agreed with the trial judge that the defendant sexually assaulted the plaintiff. Plaintiff was awarded general damages of $175,000 and punitive damages of $25,000, pre-judgment interest of $155,773.97, and costs of $325,000.
Sexual assault is arguably the most serious and unlawful thing that can happen to an employee at work. If you have been sexually assaulted at work or away from work by a colleague or manager, you should consider getting legal advice because you could be entitled to monetary damages. We offer free consultations and focus on employment law for employees. When you are able, give us a call.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.