Employer’s Duty to Protect Against and Investigate Harassment

Written by Daniel Standing LL.B., Editor, First Reference Inc.

A recent decision of a Human Rights Adjudication Panel, T.M. v Manitoba (Justice), 2019 MBHR 13 (CanLII) has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision is the first time a complaint of harassment on the basis of sexual orientation was considered in that forum-is a powerful one and is full of important takeaways for employers, employees and workplace investigators alike.

Key facts

T.M. began his employment with the Government of Manitoba in 2002 working as a Juvenile Counsellor 1 in the Manitoba Youth Centre (“MYC”). He tended to the youth who lived there, and, along with a partner, took them to different parts of the institution including the cafeteria and gym. He testified that soon after one of his colleagues learned he was gay, everyone in the workplace became aware of his sexual orientation. What began as “mild jokes” about his sexuality soon escalated to frequent derogatory, humiliating and hurtful comments. For example, the comments falsely presumed that as a gay man, he was promiscuous and addicted to sex. Others would introduce him as “the gay guy” together with crude sexual comments. He felt sickened by the constant atmosphere of badgering about his sexuality and begged certain individuals to stop making the hurtful comments, to no avail.

T.M. also testified about his belief that others were aware of the hurtful conduct, including his direct superiors, but that nothing was ever done about it; these individuals either condoned it or turned a blind eye and walked away. T.M. described the workplace as a “boys’ club” where complaining was futile and a culture of silence protected one from being labelled a “rat” and therefore leading to the demise of one’s career. This evidence was eventually corroborated by other witnesses who generally described the work environment as being “crass and inappropriate.”

As time went by, T.M. began to feel helpless and embarrassed, leading to a panic attack in 2009. Following this breakdown, he was off work for five weeks and was prescribed anti-anxiety medication and anti-depressants. In 2010, he took another medical leave due to “notable depression and acute stress reaction.” On his return to work, he was accommodated in another position until March 2011, at which time he was returned to MYC, where the harassment resumed. As a result of a herniated disc in June 2012, T.M. required another accommodation position outside of MYC, but he was constantly told that he would be returning to MYC. T.M. testified that in December 2012, while attending a work-related social function, one of his MYC colleagues grabbed T.M.’s crotch and, in very vulgar language, told him that he would anally penetrate T.M. until he bled. This incident catalyzed a complaint that T.M. filed with senior management at MYC which detailed the ongoing harassment but declined to provide names of the perpetrators for fear of retribution.

Following the initial submission of the complaint in February 2013, a protracted period of increasing frustration on the part of T.M. ensued. Owing first to T.M.’s reluctance to provide names of the alleged harassers, the employer decided, without telling T.M., that the file should be closed. With the help of his father, T.M. persisted in requesting an investigation, culminating in communications and meetings with numerous individuals, including his Member of the Legislative Assembly, the Civil Service Commissioner, and the Director of Supportive Employment Services. However, the Human Rights Commission found that other than an LGBTTQ awareness workshop that was conducted with certain personnel at MYC, nothing further was done to address T.M.’s allegations as of the summer of 2014. It was not until T.M. contacted the Director of Negotiation Services for the Labour Relations Division of Manitoba Justice in September 2014 and provided several names of witnesses and perpetrators that the employer began an investigation. At this point, T.M. had already concluded that his career was over.

The employer conducted interviews in the workplace from October 2014 to February 2015, in which it posed questions of a general nature inquiring about “joking” and “teasing” in the workplace. However, none of T.M.’s specific allegations were ever put to the witnesses. Perhaps unsurprisingly, the investigators’ report stated that they were unable to substantiate T.M.’s allegations. In fact, the word “harassment” was not even mentioned in the mandate section of the report.

T.M.’s medical status deteriorated further to the point where his physician deemed him unable to return to work for an indefinite period of time due to a permanent back issue, depression, post-traumatic stress disorder and suicidal thoughts. A psychiatrist advised that T.M. was unable to return to MYC because of his reaction to the harassment he said he experienced there. His LTD application was approved in June 2014, and T.M. eventually resigned from his employment in November 2017.

Legal issue before the adjudicator

The key issue before the adjudicator was whether the employer breached its obligations under s.19(1)(b) of the Human Rights Code (Manitoba). That provision prohibits an employer from knowingly permitting, or failing to take reasonable steps to terminate workplace harassment.

The adjudicator’s legal analysis

The adjudicator, Sherri Walsh, began her analysis by first determining whether T.M. was subjected to harassment in the first place. She cited the definition of harassment from s.19(2) of the Human Rights Code (Manitoba), and jurisprudence of the Supreme Court establishing that sexual harassment is a form of discrimination; it is a demeaning practice that constitutes a “profound affront to the dignity of the employees forced to endure it.” Ms. Walsh discussed the relative helplessness of the employee, who can only bring their allegations to the employer’s attention, at which point it is up to the employer to make sure that the behaviour does not become a term or condition of their employment. Unfortunately, the adjudicator concluded, the “shocking, vulgar and offensive” harassment that T.M. was subject to at MYC had become so pervasive that it rose to the level of a term or condition of his employment. The corroboration of T.M.’s account by others led the adjudicator to believe that T.M. was subjected to harassment on the basis of his sexual orientation while employed by the employer.

Next, the adjudicator turned her focus on what the employer was required to do once it became aware of T.M.’s complaint. Supported by human rights jurisprudence from Ontario, and the requirement that human rights legislation be given an expansive interpretation given its “ambitious aim,” Ms. Walsh stated that the employer’s obligation to address allegations of harassment is triggered once the employer becomes aware of the allegations, regardless of whether the complaint is ultimately founded or not. The employer must take reasonable steps to respond to the allegation.

The adjudicator acknowledged that there is a knowledge requirement; someone with the requisite authority to be part of the “directing mind” of the operation must know about the allegations. Here, that requirement was met since the Superintendent was made aware of the allegations in February 2013, thereby triggering the employer’s duty to address the complaint.

The adjudicator stated that the level of rigour required in the investigation will depend on the circumstances. In this case, for various reasons, it was determined that the employer did not take reasonable steps to respond to the allegations. T.M.’s allegations were very serious and explicit in nature, and it was only after T.M. and his father elevated their concerns first to the Civil Service Commissioner and then to ministers in the Government that the employer finally took steps to address the concerns. By that time, 19 months had passed since the complaint was first made. Even without the names of alleged perpetrators or their positions, the Superintendent or the Assistant Superintendent could have, if they had made an inquiry, determined which individuals worked with T.M. in order to question them. However, their decision to simply close the file as their initial reaction was not reasonable.

It was furthermore held unreasonable for the employer to question witnesses about “joking” or “bantering” given the very specific nature of T.M.’s allegations. In doing so, the employer minimized the type of misconduct complained of and failed to understand the significance of the allegations. The conclusions drawn from the report were found to be unreasonable, as well. Despite the investigation confirming that T.M. was referred to as “Code Pink” and other derogatory terms, and that remarks were made on an ongoing basis about his sexual orientation, the report did not conclude that T.M. was subjected to harassment on the basis of his sexual orientation, nor did the employer ever consider linking T.M.’s harassment allegations with his mental health restrictions.

Therefore, on the basis of these factors, the adjudicator found that the employer did not address T.M.’s complaint seriously and failed to meet is obligations to provide a healthy work environment. When it finally did act, it did not take adequate or reasonable steps-showing a lack of understanding of what constitutes harassment on the basis of sexual orientation and how to properly address it in the workplace.

The adjudicator ended her decision with a forceful remedial order, including extensive workplace harassment and respectful workplace training for all staff at MYC and human resources staff providing services to MYC. She also ordered that a Respectful Workplace Advisor position be created in the workplace. Finally, taking account of the humiliation and hurt feelings that T.M. experienced, the loss of self-respect, dignity, self-esteem and confidence he endured, as well as the frequency and duration of the harassment, the adjudicator awarded T.M. $75,000 in damages to compensate for injury to dignity, feelings and self-respect.

Takeaways

This case provides a clear message to employers about the importance of their obligation to ensure that they take reasonable steps to address allegations of harassment when they are brought to the employer’s attention. What steps are reasonable will depend on the context of a given situation, but notably, if allegations are specific and serious, the employer can and should begin to investigate even if the complainant does not provide names of the alleged perpetrators. Employers should also ensure that a clear complaint mechanism is in place for reporting harassment allegations and should act on them as soon as practicable. Workplace investigators must take care not to minimize the gravity of the allegations and should pursue questioning of witnesses using the same words to describe the alleged conduct as the complainant used. It is only when the parties involved in responding to and investigating such an allegation perform their duties properly that the dignity and self-respect of the complainant can be preserved, both as an employee and as a human being.

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