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What happened on the bus – bad faith complainant or victim of sexual harassment and assault? (Part 1)

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Conducting Workplace Assessments
23 Jul at The Advocates' Society
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Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2018 CanLII 69588 (ON LA)- Arbitrator Owen Shime –

Part 1 – details are the key!

An employee complained that she had been sexually harassed by her male supervisor. The employer conducted an internal investigation and concluded that the sexual encounter had been consensual, and therefore sexual harassment had not occurred. The complainant was fired for making a bad faith complaint. An arbitrator came to the opposite conclusion. He found that the complainant had, in fact, been subjected to sexual harassment and sexual assault. He reinstated her job and ordered compensation for lost wages and benefits.

As is common in sexual harassment/assault cases, the conclusions rested primarily on determining who was more credible—the complainant or the respondent. This case makes three important points about how to conduct a credibility analysis[1]. I will address each in separate blog posts:

Part 1: the importance of critically examining evidence in detail
Part 2: how to avoid stereotypes that may create an unfair bias against one party
Part 3: the importance of power dynamics in determining consent

Part 1: the importance of critically examining evidence in detail

What happened? A female bus driver drove her bus with broken windshield wipers into a subway station. The male supervisor directed her to move the bus to a relatively isolated location while they waited for the mechanic to arrive. The supervisor then stood over the complainant, who was in the driver’s seat, exposed himself, and asked her to kiss his penis.  The bus driver complained to her employer that this conduct was unwelcome and that she had been sexually harassed by the supervisor.

Credibility findings were key in this case. While the arbitrator said that he had “difficulties” with both the complainant’s and the respondent’s evidence, he determined that, overall, the complainant’s evidence was more credible.

Details, details, details

This case highlights the importance of asking parties for specific details regarding their claims to ensure that a full and fair analysis can be undertaken. While it can be tempting to accept some statements at face value, it is important to seek additional details on key information.

The respondent acknowledged the sexual encounter but said that it was consensual. He claimed that he had a pre-existing sexual relationship with the complainant. He relied upon this claim to justify his sexual advances that day, as well as to explain why it was reasonable to believe the complainant had consented to them.

The arbitrator carefully and critically analysed each of the alleged prior interactions that formed the basis of the respondent’s claim that he and the complainant had a previous consensual sexual relationship. The arbitrator found that the respondent exaggerated and was untruthful about how often, for how long, and in what way he had interacted with the complainant.

For example, the respondent initially claimed he had interacted with the complainant twenty times and their relationship had been “purely sexual.”  Based on the detailed evidence that came out at the hearing, the arbitrator determined however, that they had interacted only three times, for between 5-10 minutes on each occasion, and that the encounters were not sexual.

The arbitrator found that not only had there not been a prior sexual relationship, but he said “it is difficult to find that there was any relationship between them” [emphasis original]. He also made some very strong statements about the respondent: “His testimony and allegation of a sexual relationship is a malevolent and malicious lie on his part and an attempt by him to manipulate both the investigation and this arbitration proceeding.”

What actually happened on the bus?

The arbitrator also thoroughly evaluated the respondent’s evidence about what actually happened on the bus.

Based on the respondent’s own testimony, the arbitrator noted that the respondent unilaterally directed the complainant to move the bus to a more private place where he was able to expose himself to her without being seen. The respondent did not discuss his plan with the complainant, nor did ask her if she wanted to engage in sexual relations. The complainant did nothing to indicate her interest in engaging in sexual relations.

In fact, the respondent himself testified that the complainant had asked multiple times if she could go home early because her shift was almost over and her bus was out of service.

Based on the respondent’s evidence of what had happened, the arbitrator found that the complainant had not explicitly consented to the sexual interaction and had clearly indicated that she, in fact, was not interested in engaging in sexual activity with the respondent.

Learnings for Investigators

This case provides a good reminder of how to assess sexual harassment and assault allegations in a thorough, nuanced, and objective manner.

As an investigator, even with credibility concerns about both the complainant and respondent, you can still make a finding.

In this case, the arbitrator said that he had “difficulties” with the complainant’s evidence, given a number of inconsistencies and contradictions in her testimony. However, he found that she was consistent in her denial of consent to the respondent’s sexual actions, and that her lack of consent was supported by objective evidence.

In addition, by critically analyzing the respondent’s claim of a prior sexual relationship, and carefully looking for any objective evidence of consent, the arbitrator found that sexual harassment and assault had occurred, despite problems with the complainant’s evidence.

In parts 2 and 3 of this series, I will discuss how to avoid being inappropriately influenced by stereotypes and the impact of power dynamics when assessing consent.

[1]The reported arbitration case did not include enough details to know why the internal investigator found the respondent to be more credible than the complainant, while the arbitrator found the opposite to be true. The arbitrator did not make any findings about the adequacy of the internal investigation.