Serious consequences for harassing a precarious worker

By Claire McMenemy 

In Canada, a significant number of workers are engaged in precarious work. It is broadly defined as work with an uncertain duration, low wage and no social benefits, for example no health coverage nor pension (Vosko, 2011). Precarious work has been described as a “bad job” that someone often has because they lack the power, education, or social position to pursue an alternative (Fleury & Cahill, 2020).  Precarious workers also commonly have an uncertain and low standard of living, and  lack relative power and privilege in Canadian society (Ornstein, 2021).

New Canadians are among the social groups most likely to be employed in precarious work (Noack & Vosko, 2011) and female people in precarious work experience sexual harassment and violence more than other workers (La Montagne et al., 2009). The result is that a significant number of the female new Canadian workers regularly experience sexual harassment and assault in Canadian workplaces (Villegas, 2019).

This was the devastating experience of the applicant, a new Canadian from Iran, in the recent Human Rights Tribunal of Ontario case L.N. v. Ray Daniel Salon & Spa, 2024 HRTO 179. Over an approximately 2-month period in the spring of 2019, she experienced significant abuse from her employer including four incidents of sexual assault, unwanted sexual comments, and a forced haircut. At the time, she was in the process of submitting a refugee claim and did not yet have a work permit. The employer, who was from her cultural community, also paid her below the minimum wage at $5.00 per hour, informing her that this was a fair wage given that she did not have  immigration status in Canada. He also engaged in reprisal acts after the applicant filed her human rights claim, including starting a small claims action for $35, 000, alleging damage to his personal and business reputation.

The Tribunal found the employer’s behavior was “egregious sexual harassment and solicitation, and a deeply damaging affront to the applicant’s dignity” (Para. 64). It noted how the employer had taken advantage of her vulnerability as a newly arrived person, who had experienced gender-based violence and discrimination before her arrival in Canada. Considering the applicant’s, her friends’ and psychologist’s testimony, the Tribunal awarded the applicant $180,000 for the injury that she experienced to her “dignity, feelings, and self-respect, for the sexual harassment, solicitation and advances, and discrimination based on citizenship” (para. 68). Managerial staff were required to take human rights training and the decision was to be posted visibly at the workplace.

The case of LN shines a light upon the significant risks that new Canadian female workers face, particularly when they are doing precarious work. There is concern that Ontario’s legal frameworks are overly focused upon “standard work” that reflects an average male experience in a unionized workplace (Matulewicz, 2015) and does not protect precarious workers like LN from harassment and discrimination (Perry et al., 2020). LN’s courage in bringing forward this case helps to underline the important role that the Human Rights Tribunal can play despite the limits in our legislation.  The Tribunal can, as it did in this case, ensure that human rights are enforced in ways that both compensate a worker for the harm they suffered, but also send a clear message that an employer’s harassing behavior has no place in Ontario.

Claire McMenemy is a lawyer at the Community Advocacy and Legal Centre in Belleville, Ontario.

 

 

 

LaMontagne, A., Smith, P., Louie, A., Quinlan, M., Shoveller, J., & Ostry, A. (2009). Unwanted sexual advances at work: Variations by employment arrangement in a sample of working Australians. Australian and New Zealand Journal of Public Health, 33(2), 173-179. doi: 10.1111/j.1753-6405.2009.00366.x.

Matulewicz, K. (2015). Law and the construction of institutionalized sexual harassment in restaurants. Canadian Journal of Law and Society / Revue Canadienne Droit Et Société, 30(3), 401-419. doi:10.1017/cls.2015.12

Noack, A.M., & Vosko, L.F. (2011). Precarious jobs in Ontario: Mapping dimensions of labour market insecurity by workers’ social location and context. Toronto: Law Commission of Ontario. Available at: http://www.lco-cdo.org/wp-content/uploads/2012/08/vulnerable-workers-commissioned-papers-vosko-noack.pdf 

Ornstein, M. (2021). Precarious Employment in Canada. Canadian Journal of Sociology, 46(3), 217-256.

Perry, J. A., Berlingieri, A., & Mirchandani, K. (2020). Precarious work, harassment, and the erosion of employment standards. Qualitative Research in Organizations and Management: An International Journal, 15(3), 331-348.

Villegas, P. E. (2019). “I made myself small like a cat and ran away”: workplace sexual harassment, precarious immigration status and legal violence. Journal of gender studies, 28(6), 674-686.

Vosko, L. F. (2011). Managing the margins: Gender, citizenship, and the international regulation of precarious employment. OUP Oxford.