Employer Liability: A Sexual Harassment Complaint Becomes a Human Rights Application

The law expects employers to make it safe to report, to act quickly and fairly, and to protect workers from retaliation. Doing this well protects people, culture and reputation, and it is far less costly than litigating what could have been resolved through a sound process.

A recent Ontario Human Rights Tribunal decision is a reminder that once a sexual harassment concern is raised, process is not optional. In that case, a supervisor’s ongoing sexualized comments and messages, followed by a clear change in attitude and termination after the worker rejected his advances, resulted in findings of discrimination, harassment and reprisal. The Tribunal awarded roughly fifty thousand dollars for lost wages and injury to dignity, and required management to complete human rights training. None of this turned on novel legal principles. It turned on the employer’s failure to provide a reliable way to report concerns, to investigate in a timely and neutral manner, and to protect the worker from retaliation.

The legal framework you need to get right

The Ontario Human Rights Code protects employees from discrimination and harassment because of sex, and from sexual solicitation by a person in a position of authority. It also protects workers from reprisal when they raise concerns or refuse advances. The Occupational Health and Safety Act, as amended by Bill 132, requires a written workplace harassment policy and program, training for workers and supervisors, and an investigation that is appropriate in the circumstances. The parties must be told, in writing, about the result of the investigation and any corrective steps. Where a supervisor is involved, the organization can be liable for the conduct unless it can show real due diligence through strong policies, accessible reporting paths, prompt and fair investigations, and effective follow up.

What went wrong and why it became costly

The Tribunal accepted evidence of persistent sexualized remarks and messages, a hotel invitation, and then a shift to schedule changes, heightened scrutiny and termination. The employer did not meaningfully investigate after the concerns were raised, and management focused on performance issues rather than addressing the complaint. There was no credible plan to prevent retaliation or to separate performance management from the complaint process. Once those facts were established, liability followed. The monetary award was only part of the cost. The reputational harm, the internal disruption and the time spent responding to the claim were far greater than the effort that would have been required to act properly at the outset.

Turning policy into practice

Start with a policy that people can actually use. It should define harassment in plain language, cover electronic communications, and set out more than one way to report concerns, including a route that bypasses the direct supervisor. Commit to confidentiality to the extent possible and commit to protection from retaliation. Then train supervisors and staff during onboarding and at regular intervals. Make the training practical. Show supervisors how to receive a complaint without arguing the merits, when to step aside, how to preserve texts and emails, when to escalate to HR, and how to avoid decisions that can look like retaliation in scheduling, discipline or assignments.

Investigations should begin promptly and be proportionate to the allegation. Some matters can be handled internally if the investigator is neutral and trained, and if the relationships involved do not undermine confidence in the process. Where the allegations are serious, contested or involve a power imbalance, an external investigator is often the best option to protect both fairness and the integrity of the outcome.

If there are genuine performance concerns, press pause and document the rationale. Ensure that the steps you take are consistent with past practice and are not tied in time or in appearance to the complaint. Mixing discipline or performance management with an open harassment complaint is a reliable way to create a reprisal problem. When the investigation concludes, inform both parties in writing about the result and any corrective action. Keep a complete file and schedule check-ins to confirm that the resolution is working and that there are no signs of retaliation. Continue to monitor scheduling, tasking and workplace dynamics. Retaliation can be subtle, and the duty to prevent it continues after the file is closed.

A note for employees

If you are experiencing sexual harassment or retaliation after raising concerns, keep a record of dates, times, witnesses and messages, and use the reporting options in your policy, especially any route that does not involve the person accused. Human rights and health and safety protections are available, and time limits can apply.

Bottom line

This decision is a predictable outcome when organizations undertrain leaders, push complaints into the performance stream, or treat process as a formality. The law expects employers to make it safe to report, to act quickly and fairly, and to protect workers from retaliation. Doing this well protects people, culture and reputation, and it is far less costly than litigating what could have been resolved through a sound process.

Need help strengthening your policy, training leaders or managing an investigation?

Minken Employment Lawyers (Est. 1990) advises employers and employees on workplace harassment, investigations and human rights compliance across Ontario. We can review your program, deliver training or act as external investigators.

Call 905-477-7011 or contact@minken.com to connect with our team.

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Please note that this article is for informational purposes only and does not constitute legal advice or opinion.