In the #MeToo era, more people are speaking up about workplace sexual harassment, and employers are feeling pressure to develop better methods of addressing it. However, the problem has far from disappeared, partly because there are limited forms of recourse available to victims. Those available generally involve holding employers responsible for how they address instances of sexual harassment. This strategy is limited in its effectiveness and fails to adequately address the harm to the victim. A recent Ontario Court of Appeal decision is an example of how the law gives leeway to employers that generally benefit sexual harassers. Further, it shows that even where an employer does handle an incident of sexual harassment appropriately, it is not required to uphold the measures that it used to address it.
In Colistro v Tbaytel, 2019 ONCA 197, the Court addressed the consequences of an employer rehiring someone who was previously terminated for sexually harassing one of its still-employed workers. Linda Colistro had been working for Tbaytel, or its predecessor, for nearly 20 years when it announced it was hiring Steve Benoit, who was terminated 11 years prior for sexually harassing Colistro and others. Colistro was severely affected by this announcement and went on stress leave. Although the employer said it took her concerns seriously, it notified her that it would proceed with hiring Benoit and could accommodate her by giving her a position in another building. This was insufficient, and Colistro did not return to work. She was diagnosed with PTSD and depression.
The Court of Appeal had to determine whether Tbaytel’s decision to rehire Benoit constituted intentional infliction of mental distress and whether Colistro had been constructively dismissed.
Intentional Infliction of Mental Distress
There are three elements to the tort of intentional infliction of mental distress:
- Flagrant or outrageous conduct;
- Calculated to produce harm; and
- Resulting in a visible and provable illness.
The second element is subjective and deals with intention. “Calculated to produce harm” does not mean a desire to cause harm. Instead, it is established “where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow.” Basically, if a person knows their actions will cause someone mental distress, the second element is established.
In this case, the Court held that the employer’s conduct was not calculated to produce harm. The Court relied on the fact that Tbaytel had attempted to accommodate Colistro, holding that although the mental distress caused by rehiring Benoit may have been substantially certain to follow, the insufficiency of the proposed accommodation was not. Therefore, overall, her mental distress was not substantially certain to follow from the rehiring, and there was no intentional infliction of mental distress.
The Court held this even though Colistro made it clear while Benoit was on probation that the proposed accommodation would not alleviate her mental distress. Therefore, Tbaytel still could have easily chosen not to proceed with his employment.
Whether an employee was constructively dismissed or resigned is important because someone who has been constructively dismissed has the same entitlements as someone who was expressly terminated, including reasonable notice or pay in lieu thereof. However, someone who has resigned does not.
Constructive dismissal arises when an employer’s conduct shows an intention to no longer be bound by the employment contract. This can occur in two ways: through a sufficiently serious breach of a term of the contract, or where the employer’s conduct generally shows that it intended not to be bound by the contract, regardless of whether a specific term has been breached. The latter approach looks at whether the employer’s treatment of the employee objectively would make continued employment intolerable.
The Court found that Tbaytel’s conduct would make continued employment intolerable for a reasonable person and that Colistro had been constructively dismissed.
Although the Court acknowledged the possibility of financial restitution in some circumstances of workplace sexual harassment, it also showed that those instances would be rare. Significantly, the Court also made it clear that legally, there is nothing wrong with rehiring an employee’s sexual harasser.
The decision is not entirely negative. It opens up the possibility for successful claims of intentional infliction of mental distress by victims of workplace sexual harassment, although it shows that such cases will be rare. It also affirms that an employer’s poor handling of workplace sexual harassment can result in a victim’s constructive dismissal, so victims do not necessarily have to bear the entire burden of not being able to work in the same place as their harassers.
However, the positives end there. Colistro raises many questions about employers’ obligations with respect to sexual harassment. For instance, there is no apparent reason why the discussion on rehiring sexual harassers does not also apply to the initial decision as to whether to terminate them. It leaves open the possibility that employers can simply offer some form of accommodation to victims and escape liability for the mental harm caused by their inaction. Considering sexual harassment often involves victims in less powerful positions, this opens up a way for employers to constructively dismiss victims without terminating guilty, more senior employees or suffering any consequences. After all, that was essentially the result in Colistro, even if it occurred 11 years after the initial incident.