Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In a recent Human Rights Tribunal of Ontario (HRTO) decision, an employee alleged her supervisor sexually assaulted her.1 The HRTO’s analysis of the poorly handled workplace investigation that ensued provides meaningful guidance to employers on how to conduct proper workplace sexual assault investigations that do not discriminate against employees who come forth claiming they were assaulted.
The complainant alleged that while employed her supervisor sexually assaulted her at a hotel room, and that she complained to her employer. In a criminal proceeding, the supervisor pled guilty to a lesser charge of assault, admitted the allegations were true, and was found guilty. The HRTO accepted the facts outlined in the sentencing hearing as proven for the purposes of the proceeding.
In her application before the HRTO, the complainant alleged that when the employer failed to properly investigate and address her allegations against her supervisor, it violated her rights under Ontario’s Human Rights Code (Code), and discriminated against her on the basis of her sex, and a poisoned work environment connected to her sex, contrary to sections 5(1) of the Code, which provides:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Decision of the HRTO
The HRTO decided that the complainant had experienced discrimination flowing from an unreasonable and inadequate investigation of her complaint about her supervisor, and from the investigator and her employer’s failure to properly address her complaint, contrary to s. 5(1) of the Code.
It noted, as well, that pursuant to s. 46.3 of the Code, any act done or omitted to be done in the course of an employee’s employment by an agent of the employer is deemed to be an act or thing done or omitted by the employer. Therefore, the employer was liable for the actions, omissions and decisions of the agent who provided human resources services to the employer and who conducted the investigation into the complainant’s complaint (the Investigator).
The Laskowska criteria re the duty to investigate
In coming to its conclusion, the HRTO noted that Laskowska v. Marineland of Canada Ltd., (2005), 2005 HRTO 30 established that human rights jurisprudence read the obligation to conduct an investigation into the right to equal treatment in employment under s. 5(1) of the Code. Upon conducting its analysis of the complainant’s complaint, the HRTO followed the 10 criteria set out in Laskowska for considering whether the duty to investigate has been satisfied in a particular case. Set out below is each criterion together with the HRTO’s analysis of whether it was satisfied in this case.
CRITERION #1: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
HRTO ANALYSIS #1: The evidence demonstrated that the employer was aware of the allegations the complainant was making about her supervisor’s conduct.
CRITERION #2: Was there a suitable anti-discrimination/harassment policy?
HRTO ANALYSIS #2: There were suitable policies in place at the time the complainant reported the harassment to her employer.
CRITERION #3: Was there a proper complaint mechanism in place?
HRTO ANALYSIS #3: The policies set out the steps to be taken in investigating allegations.
CRITERION #4: Was adequate training given to management and employees?
HRTO ANALYSIS #4: The complainant did not recall being trained on the anti-violence and harassment policies or seeing them posted. However, her knowledge of policies was not relevant to the issue of whether her rights under the Code were breached. What was relevant and important was that the Investigator did not refer to the policies during her investigation and never considered whether the complainant’s supervisor had violated any policies. Had the Investigator followed the policy, she may have conducted a thorough and proper investigation.
CRITERION #5: Once an internal complaint was made, did the employer treat it seriously?
HRTO ANALYSIS #5: The Investigator did not treat the allegations seriously. Effectively, she did not conduct an investigation. The complainant provided the Investigator with her detailed version of what happened, and according to the policy, the Investigator was required to put the complainant’s allegations to the supervisor and ask him to provide his own version in response. However, the Investigator did not do that; as she did not put the complainant’s allegations to the supervisor and ask him to respond, she did not have two versions to compare and weigh. Accordingly, the Investigator did not conduct a reasonable investigation.
CRITERION #6: Did the employer deal with the matter promptly and sensitively?
HRTO ANALYSIS # 6: In failing to conduct a proper investigation, the Investigator did not act sensitively or show respect to the complainant. She advised the complainant that the investigation was complete within less than half an hour of the complainant sending her details of her version of what happened, with no details of what, if anything, was concluded or how the investigation was completed. Objectively, this would have had the effect of worsening the complainant’s experience as an employee because, “It conveys an indifference to the complainant’s situation and is a denial of her dignity.”
CRITERION #7: Did the employer reasonably investigate and act?
HRTO ANALYSIS #7: The Investigator did not reasonably investigate and act.
CRITERION #8: Did the employer provide a reasonable resolution in the circumstances?
HRTO ANALYSIS #8: The employer did not come up with a reasonable resolution. It was up to the complainant to suggest that she not report to the supervisor when she returned to work. Evidence was not presented to demonstrate that the employer considered a change to the supervisor’s employment as a resolution. The complainant had to come up with her own resolution to find employment elsewhere and take a lower-paying job when she continued to encounter the supervisor in the workplace. Furthermore, the Investigator’s suggestion that the complainant turn to the Employee Assistance Plan was not a reasonable resolution in the circumstances.
CRITERION #9: If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment?
HRTO ANALYSIS #9: The prohibition against discrimination in employment under the Code affords employees the right to be free from a poisoned work environment. Whether a poisoned work environment exists must be considered from the perspective of an objective bystander. A poisoned work environment refers to, “harassing or discriminatory comments or conduct that extends to create an overall impact on the workplace that is intolerable, hostile, negative for the employee and is a condition of the employment.” Using an objective standard, the complainant was not free from a poisoned work environment for the following reasons:
- The employer failed to consider how to avoid having the supervisor interact with the complainant, and allowed him to continue to do so, creating an intolerable atmosphere at the complainant’s workplace. As it was a condition of the complainant’s employment that she endure this poisoned atmosphere, she removed herself and sought other employment that paid less, and
- Upon making inquiries of the Investigator after leaving her employment, the complainant received dismissive and insensitive responses to her inquiries.
CRITERION #10: Did the investigator communicate its finding and actions to the complainant?
HRTO ANALYSIS #10: The Investigator’s own evidence was that she never communicated her findings from the investigation, or the details of any action taken as a result of the investigation to the complainant or her supervisor.
Bottom Line for Employers
This recent decision puts employers on notice that in order to conduct a thorough and proper workplace sexual assault investigation that does not violate the complainant’s rights contrary to section 5(1) of the Code, they should ensure that:
- They have a suitable anti-discrimination/harassment policy in place, which contains a proper complaint mechanism, and outlines the steps to be taken in investigating allegations, and further that employees and management receive adequate training on the policy.
- During investigations, investigators refer to the employer’s policies and consider whether the individual alleged to have sexually assaulted the complainant violated any of them.
- Investigators treat the complainant’s allegations seriously. If the applicable policy so provides, the investigator should put the complainant’s allegations to the individual under investigation and ask them to provide their own version in response. This will provide the investigator with two versions to compare and weigh.
- Investigators act sensitively and show respect to complainants. They must not convey indifference to complainants or deny them their dignity. This requires more than merely advising a complainant that the investigation was completed, with no details of what, if anything, was concluded or how the investigation was completed.
- Complainants are presented with reasonable resolutions and are not expected to come up with their own resolutions. Suggesting that a complainant turn to an Employee Assistance Plan is not a reasonable resolution when an employee advises their employer that their boss sexually harassed them and they are experiencing emotional distress in the workplace.
- If a complainant chooses to return to work, that they provide them with a healthy, discrimination-free work environment, rather than a work environment that is poisoned. To achieve this the employer should ensure an absence of harassing or discriminatory comments or conduct, avoid having the alleged assaulter interact with the complainant, and ensure that the complainant’s inquiries are not responded to dismissively or insensitively.
- The investigator communicates their findings from the investigation, and the details of any action taken as a result of the investigation to the complainant.
Employers are encouraged to follow these guidelines to ensure that they are not conducting unreasonable and inadequate investigations of employees’ workplace sexual assault complaints, and discriminating against the complainants on the basis of their sex, and a poisoned work environment connected to their sex, contrary to sections 5(1) of the Code.
1 AB v. 2096115 Ontario Inc., 2020 HRTO 499.