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February 4, 2016

The Marriage of Figaro is a Classic Case of Unlawful Sexual Solicitation

Figaro MC QuinnThe Marriage of Figaro follows the Count’s efforts to seduce one of his employees, Susanna, on the eve of her marriage to Figaro.

I use the term “seduce” under advisement; today we would refer to it as unlawful sexual solicitation. It’s something audience members may want to reflect on at the Canadian Opera Company’s production of Figaro, which opens February 4.

Consider Bartolo, a lawyer who plays a small part in the drama. If he were a practicing member of the Ontario bar, he would likely advise the Count to stop propositioning Susanna immediately. He might point the Count to section 7(3)(a) of the Ontario Human Rights Code, which states:

Every person has a right to be free from,

a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;

The sexual solicitation provision of the Code obliges employers, supervisors and other people in positions of power to take extra steps to ensure that they are not making unwelcome advances toward others. The section recognizes the inherent power imbalance created in workplaces, and operates, to however a small degree, as a corrective.

The failure of a company to provide a workplace free from sexual solicitation is a freestanding ground for filing a human rights complaint — and that means that not just the boss but also the company may be named in a proceeding.

In the recent civil case of Silvera v Olympia Jewelry Corporation, an Ontario Court found that an employee subjected to escalating sexual advances, culminating in sexual assault, amounted to both sexual battery and a breach of her human rights. The human rights analysis found three separate breaches of her human rights: the right to be free from discrimination on the basis of sex; the right to be free from harassment in the workplace; and the right to be free from sexual harassment. The Court awarded more than $300,000 in damages to the plaintiff.

As for the Count, the libretto does not provide any indication that the Count took positive steps to ascertain whether Susanna is interested in developing a relationship with him. On the contrary, we know that she told him to leave her alone. The Count persists over her objection, demanding that she meet him in the woods at night.

For those reasons, The Marriage of Figaro isn’t even a borderline case. Susanna is entitled to damages and the Count would be best advised to find a good lawyer.

Millard & Company specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

Image of the Count cc MC Quinn.

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