In April 2020, the Human Rights Tribunal of Ontario (the “HRTO”) awarded $170,000 to a terminated employee that engaged in a sexual relationship with her supervisor. Compared to other decisions at the HRTO, this was a high award. But what led to the award? Let’s consider the circumstances of NK v. Botuik.
The applicant, NK (her name was anonymized because of the “extremely serious allegations” of sexual harassment), was a “highly vulnerable” employee. In her past, NK experienced domestic violence, sexual abuse, she had a difficult childhood, and recovered from a drug addiction. NK was employed as a care worker for disabled people. She was a single mom and needed her job to support herself and her son. NK wanted more work shifts to make extra money to support her and her child.
Her direct supervisor, Jeffrey Botuik (“Botuik”), was the “central authority figure” at work. Employees reported to him about “everything”, including assigning shifts.
NK testified that Botuik consistently sexually harassed her, made sexual comments to her, sexually touched her, and forced her to have sex with him. NK also stated that Botuik also took advantage of his “power and control” by telling her that he would give her more shifts if she agreed to his sexual advances. NK feared that, if she didn’t agree, she would lose her job. The job was “the highest paying job she had ever had”. Without it, she felt that she wouldn’t be able to care for her and her son. So, she acquiesced to his demands.
Over time, NK tried to end the relationship. But, when she tried, she was sexually assaulted by Botuik. After the sexual assault, he reported her to the police. He claimed that she sexually assaulted him. NK was arrested.
NK then complained to her employer, which led to an investigation. The results of the investigation led to NK’s termination, as it found that NK and Botuik “engaged in unacceptable and inappropriate behaviour”.
Following her termination, NK filed a complaint at the HRTO. NK resolved the complaint against her employer, so the HRTO only considered her complaint against Botuik in his personal capacity.
The HRTO found that Botuik sexually harassed and sexually solicited NK, in violation of her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as their sexual relationship was without NK’s “true consent”:
… the applicant’s acquiescence to the relationship was not consensual, but forced, and that the relationship itself was a forced one. Being bullied and mentally beaten down into a state of fearful compliance does not constitute true consent with respect to entering into a relationship any more than it does for complying with demands to engage in sexual acts in those circumstances. Manufactured consent which is secured by ignoring and overriding objections is not consent at all under the law. In short, consent under the law does not extend to situations where a party complies because they fear the consequences of refusing….
As a result, the HRTO awarded NK $170,000 for injury to her dignity, feelings, and self-respect. Although NK sought $100,000, the HRTO awarded her “the very highest end of the spectrum of the sexual harassment and solicitation” awards. This was due to several factors, including:
- the “overall seriousness” of Botuik’s mistreatment towards NK;
- NK’s vulnerability and financial desperation; and
- NK’s circumstances in the context of other HRTO decisions, including one decision in which an applicant was awarded $200,000 for years of sexual harassment and sexual intercourse by her employer (who was also her landlord).
What does this decision mean for employers and employees?
Employees should be aware that, even if they participated in sexual activities with an employer (including supervisors and managers), they can file a complaint at the HRTO if they feel that they were sexually harassed or sexually solicited.
Employers, including supervisors and managers, should keep in mind that they may be held personally liable for discrimination in the workplace, including for sexual harassment or sexual solicitation towards other employees. This is regardless of whether that employee appears to participate in the sexual activities.
If you’re an employer that’s facing discrimination allegations, or if you’re an employee that’s been discriminated, the experienced employment lawyers at Ertl Lawyers are here to help. Contact us to see how we can help.
This blog is for educational purposes only. It does not constitute legal advice or create a lawyer-client relationship.