Hank Peelle, the owner of Peelle Company Ltd., deluded himself into believing the company’s financial controller, Christine Horner, had a romantic interest in him, despite his 25-year marriage and her long-term relationship. When he thought the time was right, he tried to kiss her and she rebuffed him. Despite some genuine efforts to work it out, Peelle treated Horner differently and the relationship deteriorated. She resigned, making a claim of sexual harassment and reprisal against the employer.
In Horner v Peelle Company Ltd, the Ontario Human Rights Tribunal concluded that the employer’s actions breached the Ontario Human Rights Code.
This case provides a useful analysis of what constitutes sexual harassment, a sexual solicitation or an advance, and reprisal, under the Code.
Facts of the case
Christine Horner began working with Peelle Company Ltd. in 2001. She worked closely with the owner, chief executive officer and president of the company, Hank Peelle, for almost a decade. Peelle manufactures, sells and maintains freight elevator doors.
Horner and Peelle had many things in common, like their love of sports and fitness, and they became friends. Horner testified that she enjoyed a friendly business relationship with Peelle.
However, Peelle developed romantic feelings for Horner and tried to find reasons for them to spend time together. In his view, by the fall of 2010, his marriage was essentially over (but he was still married). By February 2011, he believed that Horner shared his romantic interest. In reality, Horner was completely oblivious to the romantic feelings and did not return them.
Feeling secure that Horner had romantic feelings for him, Peelle sent an email to her personal email address intending to declare his romantic feelings. The email, with the subject line “Egypt and Risk,” reads:
Is [it] ethical to deviate from our HR and employee policies if those policies imposed a barrier between us?
You know what a great thing a partnership can be. Experiences are richer when shared with the right person. We learn so much more when we feel, see and hear through another. Decisions and choices are much better when two in-sync people work together.
In a partnership, the other person is integral. Life is a mutual project. Yeh, I may not always like what you tell me, but I still incorporate it. In a partnership, telling is not a risk but a responsibility. Considering and acting are also responsibilities.
Does a partnership shift the issue from risk to responsibility?
Some revolutions occur at gunpoint. However, revolutions resulting in a partnership between people and politicians require both sides to undertake courageous acts (A single individual stepped up – Mubarek stepped down). In a democracy, partnership requires citizens willing to accept the responsibility of active participation. As you said, in Canada, there is little risk of acting; instead, we act because it is our responsibility. Even so, to act requires courage.
Does a partnership between two people require each person to undertake acts of courage? Yet, what kind of partnership can exist, if an act of courage tramples on ethics (see my initial question). How can we resolve the two?
Christine, I have seen and been in many relationships in my time. Going forward I will accept nothing else but partnership.
Horner took the “quite cryptic” email to be a continuation of a conversation they had regarding the political situation in Egypt. She did not understand the references to an HR policy and thought that she was being accused of not being cooperative at work. It never even crossed her mind that Peelle was declaring his romantic interest.
Horner responded to the email by saying she did not understand which policy he was referring to, but that the company should not deviate from the policies because they were there to ensure procedures were fair and equitable for everyone.
At their gym, on February 28, Peelle complimented Horner and then asked if he could kiss her. She moved backwards, stated they did not have that kind of relationship, and reminded him he was married and that she was in a long-term loving relationship. He revealed that he and his wife were separated and said that he was interested in her. However, they left the gym and agreed that things would just continue as before and nothing would change.
Peelle was shocked because he believed that Horner shared his feelings. Horner was upset that this even happened because she never gave any signals that she was interested in him. Within the next 24 hours, she sat down and created a written narrative of this event. She says she did this in case she needed to recall it at a later date and because she felt it was important to capture her feelings at the time. She also told her boyfriend what happened.
The next thing you know, things did change at work.
After Horner refused the advance, Peelle apologized and even encouraged her to make an internal complaint (which she chose not to do), and things returned to normal for a couple of months, but in Horner’s opinion, it was only the manner in which the work was done that returned to normal. In her view, Peelle dealt with the rejection by changing his pattern of interactions with her.
By the end of May 2011, there were no more business lunches or conversations about non-business interests like sports. There were fewer personal meetings and more email communications, and he would barely acknowledge her if she visited his office.
Horner confronted Peelle and offered to leave the company, but he reassured her that things could return to normal.
On October 20, 2011, Peelle and Horner met for their quarterly one-on-one meeting. Peelle told Horner that her pattern of interactions with him suggested she desired a personal relationship with him, which he knew was not the case. For instance, she was asking him about events he participated in, his running, his separation, and moving to Canada from the United States. He suggested boundaries and how he needed to be clear about their relationship so he could move on. He even went as far as saying:
“Now that you are aware, you can look for these patterns and change the content of your interactions with me.”
She told him she was surprised and offended because her questions always related to their work and the business.
Horner completely stopped mentioning anything outside of work because she was afraid of being accused of talking about things that were “personal.” She also stopped being a member of the Board of Trade and a finance committee to avoid social interaction with Peelle. The constraints on communication made it increasingly difficult for her to do her job and she admitted to making minor clerical errors she would not have made in the past because she was not as focused. It also affected her personal life as she developed heart palpitations and difficulty sleeping.
Horner realized that the work environment was unbearable and decided to resign. On March 30, 2012, she told Peelle she was resigning, stating “the environment was unworkable but she would stay for three months to help with the transition.” Peelle was angry and accused Horner of poor performance.
After Horner resigned on June 29, 2012, she brought a human rights complaint against the employer. She argued that she experienced sexual harassment in employment and reprisal for rejecting a sexual solicitation or advance from her employer.
The attempted kiss constituted a sexual solicitation or advance
This issue here was whether the attempted kiss breached s. 7(3)(a) of the Code; that is, did asking for a kiss constitute a sexual solicitation or advance?
In the tribunal’s opinion, there was no dispute that Hank Peelle wanted to pursue a sexual relationship with Horner and the kiss was part of this goal. He genuinely but mistakenly believed Horner would welcome his request for a kiss, but that did not satisfy s. 7(3)(a); despite his belief, he ought to have reasonably known that the conduct was unwelcome. He was married and she was in a long-term relationship, the business lunches were considered business expenses, their email communications were business-oriented, and so was Horner’s response to the Egypt email.
The tribunal stated that Hank Peelle “either put out of his head things he did not want to know, or did not think clearly and logically about things he could not deny.” Since the Peelle Company was responsible for Hank Peelle’s actions (he was the directing mind of the company), it was liable for the breach.
After the rejection of a sexual solicitation or advance, Horner experienced a reprisal
Peelle argued that he was not trying to retaliate by changing his behaviour. He was simply trying to return their relationship to the way it had been prior to the advance.
The tribunal found Peelle’s intention lacking. He took negative actions against Horner following February 28; the actions were related to her having rejected Peelle’s sexual solicitation or advance; and there was an intention to retaliate for the rejection of the sexual solicitation or advance. These actions included blaming Horner for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature, among other things. His instructions caused Horner to put a filter on and be constantly on edge. These things were tacitly connected to the sexual advance.
The evidence established that Horner explicitly told Peelle that his changed behaviour after the rejected sexual advance was unwelcome. That behaviour is the essence of recklessness with respect to intent. Peelle was conscious of what he was doing, knowledgeable of the negative impact he was having on Horner, yet he persisted with the behaviour.
The above was sufficient to constitute an intention to reprise for the rejection of a sexual solicitation or advance.
Horner was not sexually harassed
The issues here were whether Peelle’s conduct constituted harassment as defined in s. 7(2) of the Code, and if so, whether or not the harassment was due to the applicant’s sex.
The Code defines harassment to mean engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
The evidence establishes that after February 28, 2011, Peelle engaged in a course of conduct that included, among other things: the cessation of some business-related activities; a decrease in the amount and quality of supervisory personal interactions between the parties and an explicit blaming of Horner for Peelle’s inability to get over her rejection. There is no dispute that the employee found this conduct to be unwelcome.
Given the above, the tribunal was satisfied that Peelle knew or ought to have known that the behaviour complained of was unwelcome to Horner. However, was this conduct related to Horner’s sex or gender?
The tribunal found the behaviour complained about was not sexual in nature or related to the employee’s gender, but rather related to the nature of changes to Horner’s working environment and expected business activities. Thus, the tribunal did not declare a finding of sexually harassment.
As a result of the breaches of the Code, Horner was awarded a total of $28,000 for injury to dignity, feelings and self-respect, $5,000 for the unwanted sexual advance, and also $50,219 for loss of earnings arising from infringements of the Code.
What can we take from this case?
Employers can take away from this case the need for company policies that deal with personal relationships with co-workers, sexual harassment and unwelcome conduct between employees, including the complaint, response and investigations process. This policy should be widely communicated to employees at the time of hire. Also, educate the entire workplace on what constitutes sexual harassment and what to do when it occurs.
In addition, companies are responsible when an agent of the company engages in misconduct such as sexual solicitation and reprisal. Therefore, it is in the company’s best interest to provide adequate training regarding human rights and appropriate respectful conduct in the workplace. This type of training can prevent these types of incidents from occurring.
Written with the assistance of Christina Catenacci, BA, LLB, LLM