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Investigating Complex Cases
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Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
In December 2022, a Québec labour arbitrator rendered a decision ordering Université du Québec à Montréal (UQÀM) to pay $4,000 in moral damages to Gaëlle Étémé Lebogo, a teacher assistant1 and PhD student who identifies as a Black woman, following the psychological and discriminatory harassment she suffered in the workplace.2 This decision is of interest for workplace investigators, not only because of the particular set of facts that led the arbitrator to conclude that Ms. Étémé was harassed, but also for the key insights and examples it provides regarding issues that we regularly face when conducting investigations.
The vexatious conduct that amounted to harassment
In this case, the behaviour that led the arbitrator to conclude that there was harassment primarily came from the actions of one student – identified as SMP3 – who was enrolled in a course titled, “Introduction to Black Feminism” (FEM300C),4 for which Ms. Étémé was hired as a teacher assistant.
Indeed, the arbitrator found that in his final exam, SMP exposed Ms. Étémé to harassing, racist, and sexist comments, which necessarily had the effect, if not the objective, of undermining her dignity. More precisely, in his exam, SMP made countless pernicious comparisons between Black women and animals – dogs in particular – to illustrate his points, and he explicitly called out Ms. Étémé as a teacher assistant, and wrote that once she becomes a professor, she will be able to impose a hypothetical “Black female nepotism” on the university.5
The content of SMP’s final exam was, in the arbitrator’s opinion, sufficiently serious in itself to constitute harassment. However, it was also part of a series of vexatious conduct engaged in by SMP. Specifically, during a meeting with Ms. Étémé that occurred earlier in the semester regarding his grade after the midterm exam, SMP used overly familiar language6 when talking to Ms. Étémé, despite his being asked not to do so in an email sent before the meeting, he adopted a “dominating” and “intimidating” posture,7 and he made xenophobic remarks towards Ms. Étémé.8
The employer’s obligation to protect employees from harassment
One of the insights I found to be noteworthy in this decision concerns the employer’s obligation to protect its employees from the harmful behaviour of people with whom they engage in the context of their work.
In this case, the conclusion that UQÀM breached its obligation comes as no surprise, as after the administration of the Faculty of Human Sciences was made aware of Ms. Étémé’s allegations,9 it exclusively devoted its efforts to solving the problem of the catastrophic group average within the class instead of addressing Ms. Étémé’s concerns.10 What is interesting, however, is that the arbitrator found that the existence of institutional measures aimed at the prevention of and response to psychological harassment – such as UQÀM’s Bureau d’information et de prévention en matière de harcèlement (BIPH)11 – and the fact that Ms. Étémé did not use them earlier was not sufficient to clear the university of its responsibility. As the arbitrator puts it: it was up to the employer to take the necessary steps, in a timely manner, to put a stop to the harassment when it was brought to its attention.12
Not all unpleasant and uncomfortable conversations and interactions are vexatious
As workplace investigators, we know that not all unpleasant or uncomfortable interactions or conversations that occur at work amount to harassment. This decision provides three examples of such interactions.
The arbitrator found that the collective students’ loud expression of disapproval regarding their grades,13 during a class in which Ms. Étémé was invited to comment on the midterm exams, did not amount to harassment, because the negative reactions of the students was predictable and understandable given their midterm results.14 The arbitrator reached a similar conclusion regarding the email that SMP sent before his meeting with Ms. Étémé, as there was no hurtful language directed at her, despite his use of familiar language and his arrogant tone.15 The fact that SMP vigorously challenged his grade and the standards of correction during the meeting also was not considered to be vexatious. Indeed, criticism of the tools, standards, and modes of correction were considered by the arbitrator to be normal in an academic setting and SMP’s challenge was the legitimate expression of a point of view, regardless of whether his opinion was well founded.16 The fact that the atmosphere was “unpleasant,” “hostile,” and “toxic,” and that Ms. Étémé felt uncomfortable and upset on those occasions was not sufficient to qualify the events as vexatious.
Context is fundamental
Another important insight to be taken from this decision is that context is fundamental when interpreting the evidence.
For example, Ms. Étémé alleged that in the take-home papers and the final exams, students made statements about Black women that were, in her opinion, stereotypical and racist. However, when analyzed in the context of the examinations – in which students were asked to evoke and talk about racist stereotypes associated with Black women in history and the stereotypes that they still face today17 – the arbitrator found that it was not surprising that students expressed ideas reflecting unconscious prejudice. In particular, the arbitrator noted that many students were uneducated about the principles developed by Black feminism and that a certain latitude must be recognized for students in the expression of their opinions within the framework of academic freedom.18
Using the available evidence to assess credibility
Finally, I found that this decision provides a good example of when one can rely on the other evidence available to assess the credibility of a party’s version of events in the absence of direct corroboration.
In this case, Ms. Étémé alleged that during their meeting, SMP told her that “this is not how things are done here,” and that she was more severe because she is “foreign.” As no other witnesses had evidence regarding this event, the arbitrator’s findings relied on the comments SMP wrote in the final exam, as well as an email addressed to Ms. Étémé, in which the lecturer in charge of FEM300C writes that she overheard students blame their exam results on an “overall severity problem” due to the lecturer being “from the French school” and the teacher assistant “being from somewhere else.”19
Workplace investigations can often be complex, whether because of the nature of the allegations, the particular context in which they arise, the system put in place by the employer to address them, or the evidence available. Therefore, as investigators, we must stay alert of the recent caselaw developments, as they can offer valuable insights to guide us in our work.
1 More precisely, Ms. Étémé was hired as a “correctrice,” a type of teacher assistant exclusively responsible for correcting students’ written examinations.
2 Alliance de la fonction publique du Canada (SÉTUE) et Université du Québec à Montréal (Gaëlle Solange Étémé Lebogo), 2022 CanLII 117427 (QC SAT) [SÉTUE c UQÀM].
3 The names of students were not divulged in the decision; Ibid note 2, at para 3.
4 FEM300C is a course included in UQÀM’s Certificate in Feminist Studies. It was developed by the Research Institute on Feminist Studies (IREF), an institute that falls under the authority of UQÀM’s Faculty of Human Sciences. Although the course is part of the Certificate in Feminist Studies, it is also open to students enrolled in various other curriculums; ibid note 2, at paras 8-14.
5 The arbitrator was also of the opinion that personalization of the comments with respect to the complainant, whom SMP associates with hypothetical “Black female nepotism,” in addition to calling her out as a teacher assistant, added to the intrinsic violence of the remarks; ibid note 2, at paras 255-259 and 286-289.
6 More precisely, SMP used “tutoiement” instead of “vouvoiement” when talking to Ms. Étémé.
7 SMP was “manspreading” and taking a lot of space; SÉTUE c UQÀM, supra note 2, at para 41.
8 Ibid note 2, at paras 219-220 and 225.
9 As of mid-December 2018, Ms. Étémé had multiple meetings with members of IREF’s administration, and, on January 15, 2019, she met with the dean of the Faculty of Human Sciences, who had just been made aware of the situation. During those meetings, Ms. Étémé complained about SMP’s behaviour and the content of some other written exams. No measures were taken to address the issues; ibid note 2, at paras 57-77 and 93-125.
10 Ibid note 2, at paras 308-315. Note that the arbitrator also found that UQÀM’s representatives engaged in vexatious conduct that contributed to the harassment suffered by Ms. Étémé when they arranged for the examinations conducted in FEM300C to be reviewed in their entirety, without notifying Ms. Étémé and in violation of the collective agreement; ibid note 2, at para 274-277.
11 The mission of the BIPH is, among other things, to apply the policies adopted by UQÀM to promote respect for persons and to prevent and combat sexism and harassment; ibid note 2, at para 74.
12 Ibid note 2, at paras 317-318.
13 This includes students’ comments directed at Ms. Étémé, according to which her corrections were inconsistent with the instructions they had received from their lecturer; ibid note 2, at para 26.
14 Ibid note 2, at paras 201-210.
15 Ibid note 2, at paras 211-214.
16 Ibid note 2, at para 218.
17 Ibid note 2, at paras 50 and 79.
18 Ibid note 2, at paras 227-249 and 261-269.
19 Ibid note 2, at paras 187-188, 220-225, and 258.
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