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There are many potentially thorny issues that await an investigator who is asked to make findings about a complainant’s consent to an intimate relationship or to a sexual encounter with a respondent, including the effects of trauma on memory, the potential involvement of intoxication and, of course, grappling with the complicated and nuanced definition of consent itself. The recent Human Rights Tribunal of Ontario decision in N.K. v. Botuik, 2020 HRTO 345, provides a useful illustration of another issue that we might encounter in an investigation that involves a sexual relationship between two employees: distinguishing coerced acquiescence from true consent.
The applicant in N.K. v. Botuik alleged discrimination based on sex, sexual harassment and sexual solicitation or advances under the Ontario Human Rights Code. She was a Direct Care Worker at a group home for adults with disabilities, and the respondent was her supervisor.
Soon after the applicant began working at the group home, during her probationary period, the respondent began to engage in behaviour that the applicant described as “odd,” such as telling her that she had nice hands and that she smelled good. The respondent also repeatedly emphasized to the applicant that he was in charge of assigning shifts. The applicant, who was a single mother, was eager to accept as many shifts as possible.
The personal or romantic nature of the respondent’s behaviour towards the applicant escalated as she continued working at the group home. For instance, he called and texted her on her personal cellphone with regard to non-work-related matters. He also made a sexual comment to the applicant while providing her with training on how to use the organization’s van.
The respondent’s advances eventually became physical. On one occasion, he asked the applicant to come in early, then began joking about how he needed a massage. The applicant tried to laugh this off but realized that the respondent was serious. The applicant was uncomfortable and afraid, but she agreed to give the respondent a massage because she did not want to lose her job. When the massage ended, the respondent kissed the applicant.
After the massage incident, the respondent began to touch the applicant in a sexual manner while she was at work. The applicant initially objected to these advances but, eventually, she acquiesced. She explained that she felt helpless and overwhelmed. The touching eventually escalated to sexual intercourse.
The applicant said that she and the respondent “entered into a strange, seemingly consensual relationship.”1 The respondent “simply began to act as if they were in a relationship.”2 The applicant relayed that she gave in and went along with this, and also acted as if she were in a relationship with the respondent. For example, she and the respondent began to see each other outside of work and the respondent planned things for them to do together. The applicant noted that the respondent explicitly threatened her job security and hours.
When the applicant’s probationary period ended, she successfully applied to transfer to another group home, which was operated by the same organization. She did this in an attempt to get away from the respondent. However, the respondent continued to contact her, they occasionally saw each other outside of work, and the respondent would sometimes visit the applicant’s new workplace.
Eventually, the applicant invited the respondent to her house, intending to end their relationship. When she told the respondent that she wanted to end their relationship, the respondent became angry. He physically and sexually assaulted the applicant, then left her home.
The applicant was subsequently arrested, after the respondent claimed that she had assaulted him.3 The organization conducted a workplace investigation, during which the applicant provided her version of events. However ultimately, both the applicant and the respondent were found to have engaged in inappropriate activity and both were terminated from their positions.
The adjudicator was satisfied that the respondent sexually harassed, solicited, and discriminated against the applicant on the basis of sex. He further found that the respondent sexually assaulted the applicant when the applicant ended their relationship. The adjudicator held that the respondent ought to have known that his actions towards the applicant were unwelcome, given the applicant’s objections and displays of discomfort and reticence, even though the applicant eventually acquiesced to the respondent.
The adjudicator also found that the relationship between the applicant and the respondent outside of work was not consensual, and that it constituted sexual harassment and solicitation. He held that the applicant was coerced into the relationship out of fear of losing her job. The adjudicator stated:
Being bullied and mentally beaten down into a state of fearful compliance does not constitute true consent with respect to entering into a relationship any more than it does for complying with demands to engage in sexual acts in those circumstances. …In short, consent under the law does not extend to situations where a party complies because they fear the consequences of refusing.4
The adjudicator ultimately awarded the applicant $170, 000 in monetary compensation.
Lessons for Workplace Investigators
The detailed summary and analysis of the development of the relationship between the applicant and the respondent in N.K. v. Botuik, as well as the applicant’s description of her state of mind throughout the relationship provide valuable insight for workplace investigators into how and why coercive relationships can develop in the workplace. The adjudicator summarized the applicant’s evidence as follows:
In some ways…it felt like she had lost her mind, and she was just surviving, moving forward day by day by acquiescing and going along with what he did. She repeatedly stated that it was hard to describe or explain what had happened to her, in terms of what her mindset became, and could only say that after she had given in she was confused and sometimes even began to act as if they were in a relationship.5
As the adjudicator noted, the applicant also testified that:
the later relationship with the respondent [was] a “forced relationship”. She concedes that during this time, she began to consent to doing what the respondent wanted, but states that this was because of the fear of losing her job and the mental state he had forced her into.6
As workplace investigators, when we encounter allegations that involve a workplace relationship, it is important to remember that what appears to be a consensual relationship from the outside looking in, may in fact involve coercion. Investigators should:
- Always consider the power dynamics between the parties, including the level of control the respondent has over the complainant’s duties, schedule, pay, and career progression
- Ask the complainant about their state of mind during the relationship
- Be alive to any implicit or explicit threats that the respondent made
- Be aware that seemingly benign or unusual actions on the part of a respondent can in fact be indicators of a pattern of sexually harassing conduct
- Remember that witness evidence from co-workers may be of limited use since the relationship could have appeared to be consensual
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1 N.K. v. Botuik, 2020 HRTO 345 at para. 78.
3 The charges against the applicant were ultimately withdrawn and the respondent was criminally charged in relation to the assault.
4 N.K. v. Botuik, supra, at para. 257.
5 Ibid. at para. 79.
6 Ibid. at para. 80.