There’s a new legal protection for sexual harassment complainants

Sexual harassment takes many forms: jokes, threats, comments about sex, or discriminatory remarks about someone's gender. Noriko Hayashi/Bloomberg via Getty Images

Canadian courts don’t have a great track record of accommodating sexual harassment complainants, but an Ontario court decision could help change that.

On the face of it, it’s a wrongful termination suit.

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Mark Render contends he was inappropriately dismissed with cause from his job of 30 years with ThyssenKrupp Elevator Ltd. following an investigation into allegations he sexually harassed his colleague, Linda Vieira. Although Vieira is just a witness in the lawsuit, which heads to trial this fall, Ottawa-based employment lawyer Andrew Vey said it’s quite clear the outcome will hinge on whether the judge finds her credible.

“That’s really what’s going to drive the decision in this case at the end of the day,” Vey said.

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In recognition of that, Master Graham of the Ontario Superior Court of Justice made a novel decision: Vieira can have her own lawyer. Typically courts limit such interventions to experts like civil liberties associations in cases where there is concern someone’s rights have been unlawfully infringed upon.

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“It’s very important,” Vey said, especially given the blowback many witnesses or complainants of sexual harassment face in the court and after in the public eye.

“Very often once you make the complaint it kind of feels like it’s outside of your control, you have no protections anymore,” he said. “This is clawing that back a little bit.”

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In representing Vieira as a witness, lawyer David Butt hasn’t been given carte blanche to weigh in on all aspects of the case. On this, Master Graham was very clear: “My decision is therefore not to be interpreted as providing trial witnesses generally with the right to intervene and have their own counsel at trial.”

While ThyssenKrupp’s lawyer has the ability to cross-examine Render, Butt will also be able to cross-examine him “on matters related to Ms. Vieira’s personal interest in her reputation and integrity.” Butt will also be able to object to questions other lawyers may ask Vieira on the stand and make brief opening and closing statements at the trial.

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That’s important in cases handling sexual harassment in the workplace, Butt said.

“The person who says she was sexually harassed has a very personal interest that is different,” he said. “The employer is more concerned about discipline, while the person who is sexually harassed is concerned about the individual impact, her own emotional and psychological well-being.”

The lawsuit stems from an incident on Feb. 28, 2014. Vieira alleges that Render slapped her butt and “placed his face in the area of [her] breasts and pretended to nuzzle into them.” Render contends that he “went to swipe her on her right hip” while bantering with colleagues but she turned unexpectedly and “his hand hit her on the left buttock.”
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Vieira still works at ThyssenKrupp where, per her affidavit, details of ThyssenKrupp’s investigation quickly spread among her co-workers.

“I have been the subject of derision and hostility from my co-workers because I refused to stay quiet about the behaviour of the Plaintiff and simply ‘suck it up.’”

Render’s lawyer, who objected to allowing Vieira to intervene, did not return a request for comment.

Although not everybody will have the time, money and inclination to intervene in cases as Vieira has, Vey said the court’s decision sets a clear precedent.

“It’s another tool in the belt of complainants of sexual harassment in order to protect themselves,” he said, which is in keeping with broader conversations about how best to address sexual harassment and assault allegations in ways that are fair to both victim and accused.

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That’s key, said Ann Decter, director of community initiatives with the Canadian Women’s Foundation.

“We need to remember that, historically, when women come forward about sexual harassment in their workplaces, often they were not believed or supported and their complaints were not acted on,” Decter said via email.

“In a situation like this, the needs of survivors must be respected – if a survivor is concerned about what’s being asked of them by the court, and has asked for their lawyer’s involvement, it can only be a good thing that this request was considered and granted.”

Butt will represent Vieira at the pre-trial hearing next month.

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