Assessing the Damage: Money Awards by the OHRT in Sexual Harassment Cases

Abstract

Individuals who experience sexual harassment in employment, housing, education, or other social services in Ontario may be entitled to a general damages remedy under section 45.2 of the Ontario Human Rights Code. The Ontario Human Rights Tribunal conducts an objective analysis of the severity of the harasser’s conduct and a subjective analysis of the impact of the incident on the applicant. Generally, the more severe the conduct or impact on the applicant, the higher the award for general damages. Due to an expectation that individuals will appear traumatized after enduring sexual harassment, an applicant’s failure to produce evidence of distress or traumatization will often adversely affect his or her entitlement to higher damage awards. This paper argues that the requirement to produce medical proof is an unwarranted invasion of the individual’s right to medical privacy, unjustly imposes an additional evidentiary burden upon the applicant, and perpetuates the myth surrounding sexual assault that trauma is visible and uniform.