Rejected Sexual Advance At Work: Cause For Retaliation? It’s No, Nay, Never!

sex harass
The respondent does not dispute the allegation that the actions complained of above are causally connected to the event of February 28, 2011, during which the applicant rejected the respondent's owner's sexual advance. I find and the evidence clearly establishes that but for the rejection on ... the subsequent events would never have occurred—Horner and Peelle Company Ltd. 2014 HRTO 112, para. 185

What happened?

From 2001 until her resignation in 2012, Ms. Horner was the Controller of the Peele Company Ltd. ("Peele"). In this position, she worked closely with the owner of the company who was also the CEO and President. After working together for 10 years, the owner of the company developed romantic feelings for Ms. Horner and, believing these feelings were mutual, he asked her for a kiss. When she rejected his advance, the owner changed the way he interacted with the Ms. Horner.

Adjudicator Ruth Carey found that the owner's request for a kiss was a sexual solicitation or advance within the meaning of the Ontario Human Rights Code ("the Code"), and that his change in behaviour after Ms. Horner rejected his request constituted a reprisal or a threat of reprisal within the meaning of the Code. As a result, Ms. Horner was awarded:

  • $28,000 for injury to dignity, feelings and self –respect; and,
  • $50,219 for loss of earnings arising from the Code's infringement.

What was the activity that constituted a reprisal or a threat of reprisal and what did the Adjudicator say?

Ms. Horner claimed that the following changes in behaviour constituted a reprisal or threat of reprisal (at page 44) and Adjudicator Carey expanded on these items as italicized in parantheses) (at page 45):

  • The complete cessation of some business-related activities or opportunities in the company of the respondent's owner, including: lunches either alone with the respondent's owner or with others; trips to the shop floor; sales visits to customers; and participating in the Christmas trip to New York (Ms. Horner was a corporate director of the New York parent corporation – her job description included travel to the US as part of her working conditions and as a director, Ms. Horner would reasonably be expected to participate in annual social events involving the Board);
  • A decrease in access to the respondent's owner for face-to-face supervision, interaction, and consultation on business-related matters (Ms. Horner's job description explicitly referred to walking through the plant, or going to the shop floor, as part of her working conditions);
  • A decrease in the quality of interactions with the respondent's owner (The respondent's owner testified that he and Ms.Horner attended business lunches together prior to February 28, 2011, at least once a year to meet the insurers. Ms. Horner also mentioned routine unches with bankers and the auditors as part of her normal employment-related activities).

At para. 184, Adjudicator Carey summed up her decision saying:

Although I would agree with the respondent that the law cannot force friendship on an unwilling employer, I also agree with the applicant that there is a difference between friendship and everyday interpersonal interaction in the workplace. The issue here is not the sad end of the friendship between the applicant and the respondent's owner; the issue is whether or not his behaviour in blaming her for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature at all can reasonably be said to be a negative action or a threat of negative action. In the context that existed here – a 12-year exemplary employment record and a long-standing friendship – I am satisfied that it can. As the applicant put it, his instructions forced her to put a filter on. She was constantly on edge about what she could and could not say or do; she resigned from the Board of Trade to avoid being in a situation he might misconstrue as being personal.

What this means to you?

Platonic friendships provide a fertile soil for unrequited love. Thus the object of unrequited love is often a friend or acquaintance, someone regularly encountered in the workplace, during the course of work, school or other activities involving large groups of people. This creates an awkward situation in which the admirer has difficulty in expressing his/her true feelings, a fear that revelation of feelings might invite rejection, cause embarrassment or might end all access to the beloved, as a romantic relationship may be inconsistent with the existing association.

One-sided romantic relationships are not uncommon. Employers should have policies to deal with sexual harassment and unwelcome conduct between employees. Although the employer in this case had such a policy and the employee was, in fact, encouraged to file a complaint, this did not happen.

This case illustrates that the negative consequences that constitute a reprisal or threat of reprisal, need not flow from a sexual incident between a senior and junior (subordinate) employee. Negative consequences, in this case, were found in the chipping away at job duties, communication and interpersonal work relationships creating an uncomfortable and unworkable situation for the employee who was subjected to sexual harassment.

This case is a reminder for senior management that actions of a sexual nature by senior management are held to a higher standard given the reporting relationship of subordinates. It is a reminder for subordinate employees to not assume that the status quo can be maintained when an amorous step is taken by a "boss" and rejected by the subordinate employee. But perhaps more than anything, the case is a reminder that training on policies is not limited to one set of employees.

  • If you don't have a sexual harassment policy with an investigative process – get one.
  • Make sure that the activities of senior management are subject to the same scrutiny as any other employee.
  • Educate the entire workplace on what constitutes sexual harassment and what to do when it occurs.
  • Enforce your policy with an even hand.

Note: This a reprint of an article by Lisa Gallivant & Alison Strachan of Stewart McKelvey.