Howard Levitt: Why workplace sexual assault remains a scourge

Eliminating NDAs is a double-edged sword

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Howard Levitt and Kathryn Marshall

In our line of work, we see a lot of bad things.

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From poisoned workplaces to theft and fraud, the list of workplace misconduct is limitless.

But one of the most insidious things that can happen in the workplace is sexual abuse.

We aren’t talking about sexual harassment like unwanted romantic advances or inappropriate comments. That is awful and can cause a lot of pain.

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What we are increasingly seeing are instances of sexual violence. This can happen in an office environment, or offsite such as at a work-related social function or trip.

In the employment context, this typically involves abuse of power.

For example, a superior abusing his or her power over a junior employee in order to induce them into a sexual relationship if they do not comply or promising a promotion or salary increase. This is the more prevalent form of workplace sexual abuse.

But we have also seen cases of violent sexual assault. Oftentimes, this is preceded by an orchestrated grooming process whereby the perpetrator gains the victim’s trust in order to put them in a vulnerable position ripe for abuse.

The perpetrator, often someone with influence and clout in the organization, will often target a victim, spending months gaining their trust and asserting control.

They may lull the victim into a false sense of safety and security by sharing personal information and getting them to do the same. Forming what feels like a real “friendship” built on trust and mutual caring, but it is simply part of a pattern of manipulation and control.

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The perpetrator may be careful to ensure that he or she obtains some text messages or emails from the victim that perhaps make the victim look bad, or puts them in a compromising position. Maybe texts about drug use, or out of context messages that perhaps indicate a false illusion of consent. This is deliberate, so that they case be used later against the victim in order to silence them from speaking out.

It is a disturbing playbook, and we find that oftentimes in these cases after some digging, the perpetrator has a history and a pattern of abuse.

Perpetrators of sexual violence are able to move through the system and go from job to job because of NDAs and the general stigma against victims coming forward.

The biggest fear for a victim is not being believed. The second biggest fear is that they won’t be employable. These fears perpetuate a cycle of silence that allows abusers to hide under the radar and escape accountability.

In cases where victims do come forward, the employer and perpetrator are generally heavily motivated to settle, and NDAs are swiftly signed.

While NDAs are invariably necessary in order to obtain significant compensation, it is a double-edged sword.

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The perpetrator is then free to move on to the next job and victim.

This is why in some jurisdictions, including some provinces in Canada such as Nova Scotia, Manitoba and P.E.I., there is talk of banning NDAs in cases of sexual violence.

However, this is controversial because this would mean that victims would be unable to obtain sufficient compensation in a settlement because defendants will be unmotivated to settle without an NDA. And, generally, they will be prepared to pay far more than a case would be worth in court.

In Canada, the damages for the tort of sexual violence sit in the $200,000 range at most. This perhaps indicates that the courts are still learning about the deep psychological and emotional impacts and trauma that sexual abuse can have. This is starting to change, however, as judges are becoming more informed trauma and the non-physical impacts of sexual violence. However, when it comes to compensation, the largest amounts we obtain by far have come not from court decisions but from settlements with NDAs. How much is it worth it to a perpetrator to not have their family, their employer and future employers find out. How much is it worth to a company to not be on these pages?

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Employers have exposure in these cases through vicarious liability, especially if they didn’t have sexual misconduct policies in place, failed to take action when they should have, or failed to conduct proper reference checks on an employee with a shady past.

The best thing that employers can do is to be vigilant. That means having strong policies in place, especially for work-related functions; ensuring they don’t ignore red flags; and having a safe and accessible process for victims to come forward without fear of retaliation or being dismissed.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Kathryn Marshall is a partner at Levitt Sheikh.

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