"Tell Me Where It Hurts": Workplace Sexual Harassment Compensation and the Regulation of Hysterical Victims

Makela, Finn
March 2006
McGill Law Journal;Mar2006, Vol. 51 Issue 1, p27
Academic Journal
Informed by a feminist analysis, the author examines a new development in the legal responses to workplace sexual harassment in Quebec. Sexual harassment has been recognized as a psychological injury, compensable through the province's Commission des accidents de travail. This classification was confirmed in the B�liveau-St-Jacques case, in which an alleged victim of workplace sexual harassment filed a civil suit seeking damages from her employer based on both the civil liability regime and the antidiscrimination and anti-harassment clauses of the Quebec Charter of Human Rights and Freedoms. The Supreme Court of Canada found that Quebec's Act Respecting Industrial Accidents and Occupational Diseases (�AIAOD�) extinguishes the right to all civil remedies for workplace injuries, including punitive damages in cases of intentional and illegal violations of a protected right. This approach was subsequently entrenched in the new psychological harassment provisions of the Labour Standards Act. The author discusses the implications of B�liveau-St-Jacques for victims of sexual harassment, particularly women. While the decision goes far in recognizing the systemic nature of sexual harassment in the workplace, it also somewhat illogically includes violations of fundamental rights within the ambit of �occupational hazards.� Responding to sexual harassment through the no-fault workplace compensation scheme causes the distress and anguish experienced by sexual harassment victims to be assessed as a medical condition. Women become the objects of an administrative regime that causes them to suffer further affronts to their dignity. The author contrasts the legal treatment of sexual harassment with that of a different harm to dignity�defamation, which constitutes a narrow exception to the exclusion of civil remedies under the AIAOD.


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