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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.
The case involves a complaint made by a former employee of the Manitoba Youth Centre, “T.M.,” against the Government of Manitoba. T.M. alleged that Manitoba failed to adequately address his complaints of harassment on the basis of sexual orientation, which he was subjected to by his co-workers during the course of his employment as a juvenile counsellor. The adjudicator found that T.M. brought his complaint of harassment forward to his employer on multiple occasions and as early as February 2013, but that the employer failed to take any reasonable steps to address the complaint, and therefore failed to satisfy its obligations under The Human Rights Code.
Lessons re Workplace Harassment
The adjudicator was clear in her decision that section 19(1)(b) of the Code – the section which imposes an obligation on employers to “take reasonable steps to terminate harassment” – does not require a threshold determination that an employee has in fact been harassed (more on this in the next section). That being said, the adjudicator nonetheless felt it important in this case to make a determination as to whether T.M. was harassed during the course of his employment. Based on the credibility of T.M. and the corroboration of witnesses, the adjudicator found that T.M. was subjected to harassment by his co-workers that was “shocking, vulgar and offensive.”
In making this determination, she provided the following reminders regarding complaints of sexual harassment and sexual assault:
1) A complainant participating in their own harassment does not preclude a finding of harassment: The complainant shared that he would sometimes joke along with his co-workers about his sexual orientation. The adjudicator rejected the notion that just because T.M. at times participated in the harassment that he therefore welcomed this conduct.
2) Delay in coming forward about the complaint should not form the basis of an adverse inference: The adjudicator reiterated that a person who is being harassed does not need to object to the conduct at the time that it occurred, and that there could be many factors for why there is a delay in reporting the misconduct, including fear of reprisal.
Lessons re Employer’s Obligations under the Code
The bulk of the decision is dedicated to whether the respondent breached its obligations under the Code. In answering a resounding “yes” to this question, the decision provides us with the following takeaways:
1) No need to establish harassment has occurred: The adjudicator made clear that harassment does not need to first be established in order to trigger an employer’s obligations under the Code. To put it simply, an employee coming forward with a complaint of harassment is enough to trigger an employer’s obligation to take reasonable steps to respond to the complaint.
2) Think beyond a conventional workplace investigation: An investigation will often be the means by which an employer responds to a complaint. In this case, the respondent argued that an investigation was not possible because T.M. did not initially provide the names of the perpetrators of the harassment. The adjudicator disagreed and found that an investigation based on the information T.M. did provide, although more challenging, would have been possible. The adjudicator also stated that there would have been other ways to address the complaint if an investigation was not possible, including monitoring the workplace, holding workshops, and having discussions with staff in groups or on an individual basis. The adjudicator found that the one workshop that was carried out by the employer was not sufficient, compounded by the fact that there was no log of who attended the workshop or what was discussed.
Lessons re Workplace Investigations
Manitoba eventually carried out an investigation into T.M.’s complaint – 19 months after he initially came forward with his concerns. The adjudicator found that the investigation process was unreasonable. Some key takeaways for investigators are:
1) The specific allegations at issue need to be put to witnesses: In this case, the investigators asked witnesses general questions about “joking” and “bantering” with T.M., rather than putting to them the same, specific language that T.M. used in his complaint. The adjudicator found that the general questions used by the investigators minimized the conduct under investigation and amounted to a gap in the evidence.
2) Investigators require an understanding of what constitutes harassment: In this case, the investigators made findings that T.M. was referred to as a “fag” and “Code Pink” and that remarks about his sexual orientation were made on an ongoing basis. Despite these findings, the investigators did not conclude that this amounted to harassment. The adjudicator found that this was not a reasonable conclusion and that it reflected a lack of understanding of what constituted harassment on the basis of sexual orientation.
3) If recommendations are made in an investigation report, they should be carried out: The adjudicator noted that the investigation report made two recommendations aimed at increasing awareness to staff about LGBTQ2 issues but that there was no evidence that these recommendations were carried out.
4) Be conscious of how many times a complainant is being asked to tell their story: T.M. was required to retell his story to various Manitoba employees on multiple occasions, which served to further traumatize him and was considered a factor in the large amount of damages awarded to T.M. When in receipt of serious allegations, pause to consider who will ultimately be conducting the investigation in order to avoid subjecting the complainant to multiple retellings of their story.
The adjudicator awarded T.M. $75,000 to compensate him for injury to his dignity, feelings and self-respect, and to, as she writes, “send a message to employers” regarding their obligation to take reasonable steps to address allegations of harassment. This decision signals an important reminder for employers that the failure to act on allegations of harassment can be viewed as just as egregious as the harassment itself.
Did you want to know more about how to avoid a case like this in your workplace? Rubin Thomlinson Workplace Training can help you.
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