What Happens When A Freelance Worker Is Sexually Assaulted On The Job?

In 2010, Diane Selkirk, a freelance journalist based in British Columbia, was covering a major sporting event outside of Canada. On the press trip, she spent time with two male journalists who were also covering the event and staying at the same location. They shared transportation, spent all day together and often relaxed together after work. One evening, they were sharing drinks in her suite’s hot tub. When they left for the evening, Selkirk took a shower.

When she came out of the bathroom, she discovered that one of the journalists had returned. He “thought the laughs and the fun in the hot tub might continue,” Selkirk says bluntly. Then he sexually assaulted her.

Selkirk chose to remain on assignment after the assault; her reporting wasn’t complete. She was also forced to continue working with her attacker. “I wasn’t sure how I was going to get through it,” Selkirk says. She spoke to the host of the event about what happened, but they were unsure of how and if to report the incident locally. When she returned to Canada, she learned that the event host had told her editor about the assault, without her consent.

“That editor then started sending men on press trips instead of women with children, without any explanation,” Selkirk says. (She suspects his decision was because of her assault.) There was little support available to Selkirk: she wasn’t able to get much advice on her options from the Travel Media Association of Canada or other industry organizations.

As a freelance writer, I count myself lucky that the sexual harassment that I’ve experienced at work has “only” taken the form of inappropriate comments. Take the older male client I worked with at the beginning of my freelance career, around four years ago. We were wrapping up a project and I asked if there was anything else he needed; he grinned and replied, “Getting laid would be nice.”

I laughed awkwardly and moved the meeting on. I’d liked this client; I thought we had a good working relationship. But after this remark, I questioned everything. Had he been impressed with my work, or was he just trying to get in my pants? I felt dirty and small.

In the post-#MeToo era, we’ve had more conversations about sexual harassment in the workplace, which over half of Canadian women say they’ve experienced. Less attention has been paid to the experiences of some of the most vulnerable women in the labour market: freelancers.

According to the most recent figures from Statistics Canada, 8.1 percent of Canadians are gig workers, a group which includes freelancers, independent contractors and those who do work for on-demand platforms like Uber. More Canadian women than men are freelance workers—9.1 percent versus 7.2 percent—and the total number of gig workers in Canada increased by 67 percent between 2005 and 2015. Globally, according to a report by Payoneer, a cross-border payment platform, women make up 39 percent of the freelance workforce, concentrated in fields such as translation, administration and content writing.

There is a lack of easily available Canadian data that details freelancers’ experiences of sexual misconduct in the workplace. Female freelancers’ experiences rarely show up in survey data, case law or news reports, so the issue stays out of sight and out of mind.

Isolated and uncertain

Michelle Keep, president of the Canadian Freelance Union (which represents freelancers in media and communications), says because freelancers are often isolated, it makes them particularly vulnerable to workplace misconduct. “One of the things that [abusers] often consider is if they’re able to isolate [someone].”

Keep says many people see freelancers as “an unprotected class of people” without access to the support structures that are meant to offer protection from sexual misconduct. This was certainly true for me. I had no human resources department, no manager, no coworkers. I was isolated and unsure what to do—and so I did nothing.

To stay safe, freelancers (and women more generally) tend to rely on underground “whisper networks”: private Facebook groups, Slack channels and quiet conversations are spaces to pass on information about men who are unsafe to work with. But not everyone has access to these networks, leaving already marginalized women even more at risk.

A lack of support

Tara Muldoon, a part-time freelance publicist, was sexually assaulted following a work meeting at a bar in downtown Toronto in 2017. Her assailant was a stranger who approached Muldoon, pulled down her dress and grabbed her breasts.

A server let Muldoon know that there were cameras at the bar. With the knowledge that her assault had been captured on video, Muldoon contacted the police. Her attacker was then arrested, charged and eventually pled guilty to the assault. Muldoon says he only did so to avoid a harsher sentence—he was given a suspended sentence with two years probation.

After her assault, Muldoon says she realized, “Oh, surprise, you’re a freelancer, you have nobody.” Because her attacker did not plead guilty immediately, Muldoon spent almost a year waiting for her case to come to trial. The experience was isolating and, as a freelancer, Muldoon didn’t have a manager or HR department for support.

“When I was young I would have dreamed of being able to do this work,” Muldoon says. Now she is wary about scheduling evening meetings, and also reluctant to take contracts with men.

After she was attacked, Selkirk was similarly hesitant to do certain types of work, such as attending press trips where she would be the only woman, which is often the case in the type of stories she reports. She now makes a point to find out what other journalists will be attending any trips she is considering.

As Muldoon began trying to rebuild, she realized that she was going to have to do so without the type of help that permanent employees might take for granted. “I took a little time off,” she says. “[But] I didn’t have benefits, I didn’t have access to counselling… It was really isolating.” Without access to federal employment insurance, time off for recovery also meant no income.

Not only was Muldoon without support herself, she felt immense internal pressure to keep other women safe. Muldoon was appalled to discover that her assailant, who worked as a life coach, would not have to disclose his conviction to his clients as life coaching is not a regulated profession. She posted publicly about her assault on her personal Facebook page and in women’s freelance groups, concerned that other vulnerable women may be at risk, but says the process was “really messy, emotionally.”

An unclear path to justice

Erin Ellis, a lawyer specializing in sexual assault litigation at Jellinek Law Office in Toronto, says the options available to freelancers depend on the facts of the case.

With sexual assault, it may be possible to bring a criminal complaint or a civil lawsuit against the individual. “But the individual does not always have the money or assets to pay compensation,” Ellis says. “You could perhaps... sue the company [the],” but even that is challenging. Survivors have to demonstrate direct negligence by the company or show that they should be held vicariously liable under a specific legal test with various requirements. For example, if a company has received sexual harassment complaints about an employee in the past, continues to employ them and gives them power over freelancers, it may be possible to build a case.

Samara Belitzky, a labour and employment lawyer at Samfiru Tumarkin LLP in Ottawa, says that when it comes to sexual harassment, freelancers have more options than they realize. These could include, in Ontario for instance, making a human rights complaint or filing a complaint with the Ministry of Labour. Too many freelancers, Belitzky says, are unaware that legal protections surrounding workplace sexual harassment are broad enough to cover all workers, not just full-time employees.

“It’s better to err on the side of caution and get legal advice about your options… before making any decisions,” Belitzky says.

Change is coming

A new federally funded digital platform—launching later this year—aims to help people navigate workplace sexual harassment laws across Canada, and prepare them for what to expect if they decide to report. The platform, called Rosa, was founded by Aftermetoo, an organization that aims to stop workplace sexual violence, with a focus on vulnerable or precarious workers. Kate Cornell, director of research and training at Rosa, says this resource will be particularly valuable for freelancers, who often work across provincial lines. In September 2020, Rosa conducted a survivor-centred survey of freelancers in the arts as a means to convince funders and stakeholders of the prevalence of sexual misconduct in the industry; the findings will be released alongside the platform.

Initiatives such as Rosa give me hope, but the problem remains: we are collectively unwilling to believe the stories of women who experience sexual harassment and assault while simply trying to do their jobs. And when freelancers do experience sexual misconduct, there’s a dire lack of resources and support.

I asked Muldoon and Selkirk what they would want women in similar situations to know.

“While I am motivated to create a society where this doesn’t happen… I also don’t have a lot of faith in society in general, if this can happen in a very public place what else can happen in a public place or even behind closed doors?” Muldoon says. For her, the only option was to try and close this chapter in her life and move on.

Selkirk says that when it comes her specific situation—an assault that happened outside of Canada—there isn’t always a straight path to justice. She also notes how important it is to have a strong personal support network.

After my experience, I didn’t tell my client that what he’d said wasn’t okay. Given the contract was over, I told myself I didn’t need to make a scene. I didn’t want to upset him or have him bad mouth me to other potential clients. I didn’t speak to my friends or family about the situation. Instead, I went home, anxious and upset, and told myself that this was the cost of doing business as a woman.

But the cost is too high, and it’s long past time we stop asking female freelancers to pay it.