In NK v. Botuik, 2020 HRTO 345, the Human Rights Tribunal of Ontario (HRTO) made a $170,000 damage award to a vulnerable employee who, after being sexually harassed by her direct supervisor, engaged in unwelcome sexual activity, fearing that if she refused she would lose her job and be unable to care for herself and her young son. In its lengthy decision, the HRTO emphasized that an employee's participation in sexual activity with a direct supervisor in "a state of fearful compliance" is not "true consent."1
The applicant was a direct care worker at two group homes for individuals with significant disabilities owned and operated by a corporation (the Employer). She was a single mother who had a hard life (she was the victim of sexual abuse and domestic abuse, and at one point she was addicted to drugs), but managed to turn it around. Her primary concern was to provide for herself and her son. Botuik was the "central authority figure"2 at the first residence the applicant was assigned to. She was eager for as many shifts as possible and Botuik was responsible for assigning them. Botuik sexually harassed the applicant throughout her employment, including during her probationary period. His conduct escalated from sexual comments, to sexual touching, to forcing the applicant to engage in sex in the workplace, all while continuously reminding the applicant of his power over her and implying that if she acquiesced to his sexual demands he would assign more shifts to her. To keep her job, the applicant eventually stopped resisting and acquiesced to Botuik's sexual demands. After successfully passing her probationary period, she transferred to another residence owned by the Employer, where Botuik was no longer her supervisor. When she attempted to end her relationship with Botuik, he violently sexually assaulted her. The following day, Botuik reported the applicant to the police claiming she assaulted him. This report led to the applicant's arrest and the cancellation of her work shifts. When the applicant complained to the Employer about Botuik's sexual misconduct, an investigation was conducted by an external investigator. The investigator's finding that Botuik and the applicant engaged in inappropriate activity in the workplace resulted in their termination.
The applicant filed a human rights complaint against the Employer and against Botuik in his personal capacity. She claimed she had been sexually harassed, sexually solicited, and discriminated against in her employment because of sex. As the applicant's claim against the Employer was resolved, the HRTO's decision considers only her allegations against Botuik, who did not participate in the HRTO proceeding.
Decision of the HRTO
The HRTO accepted the applicant's claims that her relationship with Botuik was not consensual and constituted sexual harassment and sexual solicitation under Ontario's Human Rights Code. The adjudicator stated:
...I find that 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.3 [Emphasis added]
In addition, the HRTO found that Botuik sexually assaulted the applicant, and described it as, "the continuance and the ultimate manifestation of the sexual harassment and sexual solicitation the applicant was subjected to..."4
In determining its remedy, the HRTO made a significant award of $170,000 in compensation for injury to the applicant's dignity, feelings and self-respect, the second highest award ever made by the HRTO in a sexual harassment case.5 The adjudicator justified the significance of the award when it stated:
...the events in this matter are among the most serious and egregious ever brought before this Tribunal....
The highest awards granted by this Tribunal are in cases of sexual harassment, solicitation, and advances involving sexual conduct by a person in a position of authority over a vulnerable employee. This is just such a case. The highest awards also involved additional factors, such as objectively more vulnerable applicants and significant incidents of reprisal.5
Notably, the adjudicator accepted the following testimony by the applicant regarding the effect of Botuik's behaviour on her state of mind:
...these events had a devastating and traumatic impact on her. She testified that when this was happening, she felt helpless and was in so much emotional turmoil that she became "numb" to what was being done to her and just "gave in". Her self-worth fell to the point where she started to think that being exploited in this way was natural for her, and that was just how life was for her. She keenly felt her powerlessness and the loss of control over her life and actions, and was often humiliated by what was happening, particularly when sexual things were done to her in front of the residents. Her sense of shame and loss of self-esteem was profound. She also felt a constant, grinding fear that she would lose her job and be unable to support herself and her son; that the upward momentum that she had created in her life since getting clean and going back to school would be destroyed. After the sexual assault, she could not sleep at night, and did not feel safe in her home, where the assault had occurred. She still never wants to have to work with men, ever again.7
In making its award, the HRTO also emphasized the applicant's vulnerability:
Due to her personal history, NK was in a highly vulnerable position. She had been a survivor of sexual assault as a child, and had been in abusive domestic relationships later in her life. After a number of difficult years, she had successfully turned her life around, shedding drug addiction, and completing her education. She was desperate to provide for her son and herself and it was extremely important to her to keep such a good paying job, as a result.8
Bottom Line for Employers
NK v. Botuik puts employers on notice that if an employee alleges they were sexually harassed by another employee who claims they were in a consensual relationship, an investigation of the matter must be conducted with great care. If the investigator determines that there was a sexual relationship, the circumstances leading up to its existence should be evaluated to determine whether it was truly consensual. The investigator should consider the power dynamics between the employees and the state of mind of the employee claiming sexual harassment in the period leading to the sexual relationship. In addition, the investigator should consider whether the employee was explicitly or implicitly threatened, coerced, or bullied into acquiescing to the sexual relationship and, if such behaviour is established, inquire about its effect on the employee's state of mind. The investigator should further explore whether the employee complied with the sexual demands because they feared the consequences of a refusal, e.g., the loss of shifts, opportunities for advancement, pay increases, or the complete loss of their employment. Finally, consideration should be given to whether the employee was particularly vulnerable to the other employee's sexual demands because of their personal history.
1 NK v. Botuik, 2020 HRTO 345, at para. 257.
2 Id. at para. 31.
3 Id. at para. 257.
4 Id. at para. 259.
5 The highest award made by the HRTO ($200,000) was in AB v. Joe Singer Shoes Limited, HRTO 107, in which the applicant was both an employee and a tenant and the conduct occurred for many years.
6 Id. at paras. 272 and 273.
7 Id. at para. 277.
8Id. at para. 281.
Originally published by Littler Mendelson, October 2020
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