Workplace investigations are not for the faint of heart. The sensitive subject matter and high stakes often cause tensions to run high, not just for the parties, but also potentially for investigators.
In the world of workplace investigations, we often hear of adopting a trauma-informed approach in sexual harassment cases. We especially heard this during the #MeToo movement, and, indeed, it was necessary.
Some of the most serious forms of workplace or institutional investigations will involve the investigation of allegations of sexual assault. For post-secondary institutions (“PSIs”), incidents of sexual assault are, unfortunately, not uncommon. As evidenced by recent stories in the media, incidents of sexual assault can also arise in a variety of other workplaces and organizations.
It seems like every time I see the news or read the paper, there are stories of trauma everywhere. This is partially because, sometimes, these are the stories the media features for “clicks.” But I think, more importantly, this is because trauma is just incredibly prevalent in the human experience.
I can remember this event like it was yesterday. It was at the beginning of my career as a workplace investigator, and I was assigned to conduct an investigation of discrimination on the grounds of race. On this particular day, I recall sitting there, listening to the Respondent tell their side of the story. Suddenly, a familiar but deeply uncomfortable feeling crept up. It was at that moment I knew that I was “triggered.” Unbeknownst to me on that day, that “familiar” feeling was me reliving a past trauma I have experienced.
In a recent webinar offered at Rubin Thomlinson, titled “Primer on Consent,” we enjoyed a highly informative discussion on consent in the context of sexual assault. Part of that presentation included reference to a trilogy of cases from the Supreme Court of Canada (SCC) on the issue of sexual assault and s. 276 of the Criminal Code (“CC”).
A recent decision of the Manitoba Human Rights Commission¹ has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision – the first time the Human Rights Commission has considered a complaint of harassment on the basis of sexual orientation – is a powerful one, and is full of important takeaways for employers, employees, and workplace investigators alike.
In 2018, the Ontario human rights tribunal case A.B. v Joe Singer Shoes Limited received a lot of attention because of its high damages award – $200,000 for the Applicant’s pain and suffering from of over 20 years of sexual harassment by her boss, Mr. Singer. But when Mr. Singer sought judicial review of this decision, it was not the quantum of the damages that was at issue; it was the Vice-Chair’s assessment of the parties’ credibility. Since this was a “he said, she said” case – there were no direct witnesses to Mr. Singer’s conduct – the Vice-Chair determined that Mr. Singer had engaged in sexual harassment, even though he denied doing so, because she believed the Applicant (Ms. B.) and did not believe Mr. Singer.