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Unpaid intern awarded $75,000 for sexual harassment

Employer had history of inappropriate sexual touching
By Aidan Macnab
| www.cos-mag.com
#metoo
For victims of sexual harassment in the workplace, filing a human rights application can be means to seek justice, says Human Rights Legal Support Centre lawyer.

The Human Rights Tribunal of Ontario has awarded damages of $75,000 to a 15-year-old former intern who worked at a tattoo parlour.

The teenager made a complaint under chapter H.19 of the Human Rights Code, which pertains to discrimination in employment because of sex, sexual harassment, sexual solicitation or advances, gender identity and age. The damages were sought as compensation for “injury to dignity, feelings and self-respect,” according to the tribunal’s record.

While they were alone in the tattoo parlour, the respondent steered conversations between him and the applicant, who was an unpaid intern, to sexual topics, asking her which genders she was attracted to and which sexual positions she liked. He put his finger in her vagina and touched her breasts with his mouth, as well as invited her to touch his penis, which she did to appease him, the tribunal said. He also offered her money and a free tattoo for sex.

Beth Walden of the Human Rights Legal Support Centre represented the applicant and says the case is a good example of a third option other than the “stark alternatives” offered by criminal and civil trials. In criminal trials, the process is about the offender, punishment, deterrence and rehabilitation, while civil trials are expensive and include the risk of cost consequences, says Walden. Human rights tribunals are more directed by the applicant and headed by those with “special expertise” in sexual harassment and harassment and poisoned work environments.

In a separate criminal trial, the owner of the tattoo parlour was convicted of sexual touching, sexual interference and sentenced to nine months in prison. He had also pleaded guilty to sexual assault, but that charge was stayed.

The applicant asked that the findings in the criminal case be accepted as fact at the tribunal by filing a request for order during proceeding, which inserted the transcript of the criminal court proceeding and judgment by Justice Jack M. Grossman. The respondents did not oppose the request.

Both parties agreed that the terms of the internship constituted employment in the terms of s. 5 of the Human Rights Code, which regards equal treatment with respect to employment.

The respondent argued the damages of $75,000 were punitive, but Walden requested what was more in line with what would be awarded in a civil case, she says.

The amount of damages reflected the egregiousness of the actions by the respondent, Walden says. In their submissions, they emphasized the power imbalance between a boss and family friend and a 15-year-old, the betrayal of trust and her vulnerability as an unpaid intern intent on pursuing a career in the tattoo industry.

Walden cited several other cases of sexual harassment and sexual assault where the damages awarded were on the high end, including O.P.T. v. Presteve Foods Ltd., where the damages were $150,000 and $50,000. In that case, the two applicants — both Mexican temporary foreign workers — brought claims against their employer.

The purpose of the tribunal is not punishment of the perpetrator but putting the victim back into the same place as had the discriminatory acts not occurred, she says.

Aidan Macnab is the acting associate editor for Canadian Lawyer, a sister publication of COS. This article was originally published here

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