Dual obligations to ‘believe the women’ and provide due process

How the #metoo movement will challenge employers’ responses to harassment allegations in their workplaces
By Michael Waite
|Canadian Employment Law Today|Last Updated: 05/31/2018

We have all watched the growing sexual harassment scandal roiling the American entertainment industry and causing the downfall of American political figures (with notable exceptions). Corporations and organizations across North America in numerous industries are dealing with an onslaught of credible allegations, some involving high-profile employees and senior executives. Employers will be under pressure to act decisively perhaps from multiple sources (employees, media, and shareholders, for example). Termination for cause will be the appropriate outcome in some cases but not others.

As trusted legal advisors to employers and employees, employment lawyers want to underscore that employers have a duty to keep their employees safe from sexual harassment. At the same time, it must be remembered that employers also have a duty to conduct a fair investigation without a rush to judgment. After briefly discussing exactly what sexual harassment is, we will review the scope of these duties, and best practices of employers to safeguard their employees.

What is sexual harassment?

In Alberta, an employer has duties to keep employees safe from sexual harassment under the province’s Occupational Health & Safety Act and the Alberta Human Rights Act. Employers in other provinces have similar obligations. The Supreme Court of Canada in the seminal case of Janzen v. Platy Enterprises Ltd. clearly enunciated what sexual harassment is: unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. Sexual harassment is not limited to demands for sexual favours, but also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions or inappropriate comments. Other authorities establish that sexual harassment can be either overt or discrete, and can include conduct of a physical, mental, psychological or verbal nature. It is not necessary that there be an intention to harass to establish harassment. The harassing conduct also does not need to be directed at a specific individual — the actions of the harasser can be such as to create a hostile or poisoned work environment. Sexual harassment usually has an element of persistence or repetition, although a particularly severe but isolated incident may suffice to establish harassment. Although the majority of claims involve harassment of women, there is no gender-specific qualification and it is possible for members of the same sex to sexually harass each other, as well as a woman to harass a man (Halsbury’s Laws of Canada — Discrimination in Human Rights (2013 reissue). Sexual harassment can also occur in any combination of working relationships, including between fellow employees, in addition to harassment by a supervisor of subordinates.

Employer duties in the face of sexual harassment

The authorities have made it clear that vicarious liability of the employer for the sexual harassment of its employees will only be established if the harassment occurs “in the course of employment,” as is illustrated by the leading 1987 case Robichaud v. Brennan. An employer, however, does not have to have actual knowledge of the harassment for the employer to be held vicariously liable. The following activities have been found to be within “the course of employment”:

• Activities which the employee might normally or reasonably do or be specifically authorized to do while employed

• Activities which fairly and reasonably may be said to be incidental to the employment or logically connected with it

• Activities in furtherance of duties the employee owes to her employer

• Activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.

This means that the employer could be liable for sexually harassing behaviour that occurs outside of work hours as well as outside of the workplace. The recent Supreme Court of Canada decision British Columbia Human Rights Tribunal v. Schrenk, also holds that an employer can be liable for sexual harassment by an employee of people outside of the company, such as a worker from another company working at a common worksite.

Minimum duties of the employer

The recent Alberta case Watkins v. Willow Park Golf Course Ltd., suggests that the minimum duties of an employer in the face of sexually harassing behaviour by one of its employees may be to:

• Give a warning to the alleged sexual harasser to cease his conduct (although if the harassment is severe a warning may not in fact be required before termination)

• Investigate the complaint of sexual harassment (although failure to conduct an adequate investigation may not in and of itself be fatal to safeguard against a wrongful dismissal action)

• In egregious circumstances, terminate the employment of the harasser.

The 61-year-old supervisory groundskeeper at the golf course became infatuated with his employee, who was 32 years his junior. She was not interested in his romantic advances and made this clear to him. Nonetheless, he continued to pursue her, and when he felt rebuffed, harassed her with verbally abusive language, bullying, stalking and surveillance. She was a single mother who needed her employment to support herself and her child, and as a result of the harassment she was under great stress. The employee wrote a letter to the directors of the golf course complaining of the harassment and the directors immediately terminated the supervisor. He sued for wrongful dismissal, but the Alberta Court of Queen’s Bench dismissed the wrongful dismissal action on the basis that his termination was justified as a result of his harassment of the employee.

Watkins is helpful in that it suggests minimum duties of an employer in the face of sexual harassment by one of its staff. Justice Hollins of the Alberta Court of Queen’s Bench suggested that there is no “hard and fast rule” about whether an employer must issue a warning to the alleged sexual harasser, and found that in this case the harassment was so severe, a warning was not necessary prior to termination. The golf course did not have a harassment policy in place. Justice Hollins found fault with the golf course for not conducting an adequate investigation of the complaint, including a failure to interview the employee. Notwithstanding this failure, however, this did not automatically “obviate a justified summary termination.” Justice Hollins concluded that the harassment was so severe that termination of the supervisory employee for just cause was justified.

Best practices

The earlier leading Alberta authority, Leach v. Canadian Blood Services, suggests that, in terms of best practices, in the face of sexually harassing behaviour towards one of its employees, the employer should:

• Immediately notify the alleged harasser about the complaint.

• Give the alleged harasser a copy of the company’s harassment policy to review.

• Give the alleged harasser time to consider his position before the next meeting with a representative of the employer to discuss the complaint.

• Give the alleged harasser an opportunity to respond to the complaint.

• Invite the alleged harasser to have legal representation at the outset.

• Keep detailed minutes of all meetings with the complainant and alleged harasser.

Adoption of these steps will go a long way to establishing that procedural fairness was given to the alleged harasser in the event of termination of the harasser’s employment and a wrongful dismissal suit.

In addition to the above, we also recommend that employers:

• Develop and regularly update a written policy that defines and prohibits sexual harassment and sets out the consequences up to and including dismissal for cause.

• Include the harassment policy as part of the employee handbook.

• Clearly identify to whom complaints of sexual harassment should be reported.

• Follow all steps as laid out in the harassment policy and support the victim throughout the process. This will be especially important if the decision is to discipline but not terminate. The employer will have to take steps to ensure that the victim feels safe going forward including considering whether a transfer of one or the other of the employees is appropriate.

• Depending on the severity of the complaints or the pervasive nature of the issue, consider whether an external investigation would be beneficial.

• Conduct a risk assessment to evaluate the current risks of sexual harassment in the workplace. The risk assessment should include an evaluation of the culture of the workplace and whether there is a culture that fosters or tolerates harassing behavior. For larger organizations, this should include assessments at an operations level, not just company-wide.

• Put in place a prevention program, which could include giving workers training as to what constitutes sexual harassment, how to identify potentially volatile situations, and how to respond or intervene, including emergency response procedures, upon hiring and on an ongoing basis.

Sexual harassment and sexual assault in the workplace (or anyplace) is abhorrent and should be condemned. Perpetrators should be subjected to serious consequences and discipline up to and including dismissal. Victims must be heard and their experiences learned from. They must be supported through the investigation process. Their experiences must not be minimized or invalidated even when there is conflicting evidence from the accused. Employers must have robust policies in place to deal with harassment and assault and need to follow them. In order for victims of harassment or assault to feel free to come forward they need to have faith that there is a just system in place to deal fairly and compassionately with the complaint. However, the imperative to believe and support the accuser cannot overwhelm the requirement for employers to conduct fair and balanced investigations. These are two imperatives and are not mutually exclusive. We have come to a societal reckoning that is long overdue. If we proceed with thoughtfulness and compassion, we will be able to address harassment complaints in a manner that supports the victim and provides a just result for the perpetrator.

For more information see:

Janzen v. Platy Enterprises Ltd., 1989  CarswellMan 158 (S.C.C.).

• Halsbury’s Laws of Canada – Discrimination in Human Rights (2013 reissue)

Robichaud v. Brennan, 1987 CarswellNat 1105 (S.C.C.).

British Columbia Human Rights Tribunal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.).

Watkins v. Willow Park Golf Course Ltd., 2017 CarswellAlta 1678 (Alta.Q.B.).

Leach v. Canadian Blood Services, 2001 CarswellAlta 173 (Alta. Q.B.).

Michael Waite is an employment lawyer with Carbert Waite LLP in Calgary, advising employers and employees on various employment, disability, and human rights issues. He also practices commercial litigation, estate litigation, serious personal injury litigation, and civil fraud. He can be reached at (403) 705-3307 or waite@carbertwaite.com.

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