Sexual Assault at Work

Canadians who are sexually assaulted at work may have both a criminal case against their assailant and be entitled to financial compensation from their and/or the assailant's employer.

Workplace sexual assaults may cause employers to be financially liable under constructive dismissal labour law claims, compensation for pain and suffering, and future employment losses due to the employee’s future capacity to work being reduced. Most people are aware they can receive money from their employer for having to quit their job early as a result of a workplace sexual assault, but they may be unaware of a potentially much larger civil claim against the employer as well. The civil claim is created when the employer is found vicariously liable for the sexual assault committed by an employee.

Suing Employer for Sexual Assault

If a sexual assault occurs at the workplace, the employer may be found vicariously liable depending on the circumstances of the case. Vicarious liability means the employer may be required to pay money to the victim for compensation. This is important because the assailant may not have the financial resources to pay the settlement or judgment himself. Whether the employer can be found vicariously liable will depend on the facts of the case, including factors such as:

1) the employer’s policies promoting safety and preventing of sexual assault;
2) the employer’s awareness or wilful blindness, if any, towards the sexual assault;
3) the manner in which the victim came in contact with the assailant;
4) the location where the sexual assault took place (such as at the office).

If should be noted that employers can be found financially liable for acts committed by their employees whether the victim is a fellow employee or not. In cases where the victim is sexually assaulted by a co-worker, their employer may be liable in these circumstances to pay both lawsuit related damages (pain and suffering, future income loss, etc.), and constructive dismissal termination benefits as well.

So long as the assailant is acting in the course of their employment (or there is another connection between the sexual assault, the victim, and their job), the victim can still seek lawsuit related damages from the assailant’s employer, but would not be entitled to constructive dismissal benefits. Don’t think that just because you don’t work for the same company as the assailant that you cannot sue them. You can sue them either way. The only difference is that if you are not an employee, you cannot sue for constructive dismissal benefits, which make up only a very small portion of an overall claim.

For example, if the victim is sexually assaulted by a police officer, the victim may sue the police department and the officer himself. If the victim also works for the same police department, she may have an additional claim for constructive dismissal.

Sexual Assault vs. Sexual Harassment

The difference between sexual assault and sexual harassment is that sexual assault involves touching without valid consent, while sexual harassment is a general term that includes any inappropriate sexual touching and/or comments. Sexual assault is a term that is used in the criminal and civil context, while sexual harassment is used for labour and employment law related matters. Being the victim of sexual harassment does not necessary make you the victim of a sexual assault (though you could be).

If you are sexually harassed at work, you have not necessarily been the victim of a sexual assault. Even if the actions do not constitute a sexual assault, the employer may still be punished for sexual harassment regardless of whether the sexual harassment meets the definition of sexual assault. In Canada, workplace sexual harassment claims are handled regularly upon application to the appropriate human rights tribunal. Human rights tribunals have significant power to require employers to pay damages, implement policy changes, and impose other penalties and requirements to remedy harassment cases.

If the victim is forced to quit their job as a result of harassment in the workplace by a fellow employee, they also may be entitled to salary loss benefits.

Constructive Dismissal

In labour law, in normal circumstances employers must give advanced notice to terminate their employees. This notice is governed by the provincial labour laws in each province. If you quit your job because the employer made your working conditions so bad that you had no other choice but to quit, this is said to be a constructive dismissal. In these circumstances, you may be entitled to receive pay for the number of weeks that the employer would have been required to give you notice had they fired you.

It is important to note that this money is entirely separate from a potentially much larger sum that the victim could be entitled to in compensation ordered as a result of a sexual assault lawsuit. This depends on whether the sexual harassment involves behaviour that could be classified as sexual assault or not.

---