Sexual harassment is a scourge on the workplace and employers would be wise to do their best to prevent it and deal with it when it happens. This includes acting promptly in response to a complaint, but that’s not the whole story. Acting promptly is important, but the substance of the measures taken is essential, if not more important.
A quick response to a harassment complaint is important and laudable for an employer. However, if that response doesn’t actually address the harassment or protect the victim, it can be a big problem. The Canada Revenue Agency (CRA) learned this the hard way when it was ordered to pay more than $60,000 to a harassed employee who continued to experience harassment, discrimination, and stress after her complaint.
Marilyn Doro was an appeals officer with the CRA in Hamilton, Ont. The office where she worked consisted of mostly female employees with only a handful of males, including her supervisor.
The supervisor became the team leader in Doro’s section in January 2010. A few months later in May, he started giving Doro unwanted attention at her desk nearly every day. A couple of times, the supervisor touched her while she sat at her desk, including a back rub that a co-worker witnessed. In addition, the supervisor gave Doro two compact discs containing love songs and told her to only listen to them at home. He frequently invited her to coffee or lunch, offered her rides home, sent her chocolate through the office mail — which embarrassed her in front of her colleagues — offered to help her with her home chores, texted her in the evening and on weekends, made comments to her that suggested he was watching her house, and sent sexually-themed emails to her personal email account.
Doro felt intimidated and often trapped by the supervisor’s behaviour, but in October 2010 she finally reported it to the CRA with a written complaint. The chief of the CRA’s appeals division in Toronto West — who was the harasser’s manager — confirmed receipt of her complaint and discussed it with her. However, after the complaint, the supervisor continued to work in close proximity to Doro, watching her from his desk with his office door open as she walked past to her cubicle. Doro took several days of sick leave after filing the complaint.
The appeals division chief provided some options to create physical separation between Doro and her harasser, including moving to the St. Catharines, Ont., office with compensation for her extra mileage and a travel lunch allowance. Other options presented included moving to another position in the same building, moving her desk several metres away to an area on the same floor known as the SRED area, or telework from home. The CRA also noted that the supervisor had agreed to take Mondays off instead of his preferred Friday for the CRA’s compressed workweek —Doro took Fridays off — so they would both be in the office only three days per week.
Initial solution still exposed worker to harassment
The CRA identified a new team leader for Doro’s group, but it wouldn’t be effective until two weeks after the complaint —Oct. 18. The CRA believed Doro agreed to have her desk moved to the SRED area informed Doro and her harasser of the move and advised they were prohibited from communicating with each other. However, when Doro returned from her sick leave she was surprised and unhappy this had happened — the location was still near her harasser and he could still watch her come and go to her cubicle from his desk. In fact, Doro said her harasser continued to watch her and would “leer” at her as she walked through a hallway that was the only way to her work area. She disputed that she had agreed to the move, but the division chief felt it was the only option as Doro had rejected the other choices, the harasser had denied the accusations, and it was a “nightmare” to change a team leader.
The appeals division chief told the harasser to shut his office door and stop leering at Doro, but it turned into an agreement that the door would be shut 80 per cent of the time. He also told the harasser to move his desk and chair so he couldn’t look out the door to stare down the hallway, but the harasser resisted. As a result, the harasser continued to sit in his office and stare at Doro until — after repeated requests from Doro — the division chief moved her farther away from the harasser.
The CRA hired an independent investigator to look into the harassment and interview various employees. The process involved a search for the investigator, interviews with several employees, a response period for everyone interviewed, writing of draft reports, time for rebuttal comments, and a months-long screening of the final draft report. This took a total of two years and the final report was submitted on Oct. 18, 2012. It concluded that the supervisor was guilty of 13 different incidents of harassment against Doro, contrary to the CRA’s anti-harassment policy. The supervisor was suspended for six days without pay.
Doro filed a human rights complaint alleging that CRA’s handling of the aftermath of the sexual harassment — effectively consenting to additional harassment after the complaint — was discrimination under both the Canadian Human Rights Act and the collective agreement.
Employer’s response prompt, but inadequate
The board found that the CRA acted promptly to acknowledge and initially investigate Doro’s complaint, as well as provide “organizational separation” from her harasser by starting a process for a new team leader, but it lagged in actually “providing a safe level of physical separation” from him. The agency put the onus on Doro to reach a solution instead of confronting her alleged harasser and possibly putting him on administrative leave pending an outcome of the investigation or moving his office away from Doro. In fact, the board found it “appalling that (the division chief) had the temerity to pressure Ms. Doro to move her workplace to a different city but felt it inappropriate to even ask the harasser to move his office to a different floor of the same building.” The burden should be on the CRA to create a safe and harassment-free workplace, not on the victim of harassment, said the board.
As a result, the CRA failed to properly address the sexual harassment in its aftermath by not implementing a satisfactory solution, leaving Doro exposed to more harassment. This amounted to consent of the continuing harassment and a failure to take adequate steps to prevent the sexual harassment, said the board.
“I find that the CRA viewed Ms. Doro’s desire for a safe workplace as a burden that she needed to solve herself by either moving her workplace to a new city or to a different floor or to stay home and telework,” the board said. “Ms. Doro testified as to the terrible stress and fear this arrangement caused her as she had reported the harassment, spent a brief period home ill due to stress, and then returned to work to find her workstation moved under the new arrangement that had been dictated by (the division chief).”
The board noted that the CRA had policies and a respectful workplace campaign, but there was no evidence Doro’s harasser received or read any harassment prevention awareness or training material, or attended any workshops. Given the harm caused to Doro by her supervisor, the board suggested both the CRA and the union put more effort into sexual harassment prevention and dissemination of information of the consequences of harassment before it happens.
On top of the CRA’s failure to properly address the harassment of Doro and its aftermath, the board found the length of time it took for the independent investigator to reach a conclusion was too much — during the two-year process, Doro had to endure uncertainty and additional harassment, exacerbating her stress and causing her to take additional sick leave lasting several months.
The CRA was ordered to pay Doro $20,000 in damages for pain and suffering stemming from the discrimination to which it subjected her and $20,000 in special damages for “the reckless manner in which it handled the initial investigation of her complaint that resulted in her being left in the immediate proximity of her harasser and that allowed him to continue harassing her.” In addition, the agency had to fork over another $22,995 in out-of-pocket expenses Doro claimed she spent on trauma counselling and other treatment for the anxiety and depression she suffered as a result of the harassment.
For more information see:
• Doro v. Canada Revenue Agency, 2019 CarswellNat 691 (Fed. Pub. Sector Lab. Rel. & Emp. Bd.).
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