Post #MeToo we have more and more dialogue about sexual harassment and sexual assault. There has been significant discussion in the areas of what constitutes consent and the power imbalances that exist in the workplace. For those reasons, some employers prohibit intimate contact between employees. Employers take this stance, because they know they could be liable for the sexual misconduct of an employee, whether the misconduct was perpetrated against another employee, a client, or otherwise.
Sexual assault is often discussed as a criminal offence however, frequently we see these allegations arise in the workplace as sexual harassment. Employees can report the conduct in the workplace and/or to the police and pursue a civil lawsuit against the alleged perpetrator and their employer. This can lead to investigations, police involvement, and defending a civil lawsuit. It is best to speak to counsel early in the process, involve your insurer if you have employer insurance or litigation insurance, and educate yourself about the process. Burying your head in the sand will not be effective when dealing with these types of serious allegations.
Allegations That Can Be Made Against an Employer
If an employee is accused of sexual assault, whether by a colleague, client or otherwise, an employer may also be found to be liable for the actions of that employee, given the employer’s duty to keep all employees safe while at work. In determining whether or not the misconduct is sufficiently connected to a task or responsibility authorized by the employer, and in order to make a finding of vicarious liability on the employer, the court may consider non-exhaustive factors such as: the opportunity the employer afforded the defendant to abuse their position of power, the vulnerability of potential victims, and the employer’s response to the complaint (how timely was it, was it taken seriously, was it investigated).
Essentially, to justify the determination of liability on the employer, there must be a strong connection between the accused employee’s responsibilities and the wrongful act, and there must be proof that the employer significantly increased the risk of harm by putting the employee in their position and requiring them to perform the assigned tasks (Bazley v. Curry, 1999 CanLII 692 (SCC)).
Keep in mind that employers also have a duty to maintain a safe workplace under the Occupational Health and Safety Act and businesses have a duty to take care to ensure that people entering the premises are reasonably safe under the Occupiers’ Liability Act.
We often work with employers and employees where these types of allegations have been made. There are a number of factors for employers to consider when they employ both a victim and a perpetrator. These situations require a sensitive approach that balances a number of important competing interests.
Allegations That Can Be Made Against A Personal Defendant
A personal defendant (i.e., the employee who committed the alleged misconduct) may face allegations of intentional infliction of mental suffering, the tort of assault, and/or the tort of battery. Non-pecuniary/general (i.e., pain and suffering) damages, special damages (e.g., past income loss), and punitive damages may be claimed in the range of millions of dollars. Often, defendants who are personally named in civil sexual assault claims will not have insurance that covers the defence and/or indemnification of such a claim and can find the legal process of defending such a claim very costly. Our team also works closely with personal defendants to ensure timely and cost-effective advice.