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The Winds of Change – The Sexual Harassment Cycle

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With many high profile sexual harassment cases making headlines, will we finally see lasting change?

As I watch the events unfold in the media, like a lot of you, I find myself wondering if this time, finally, things might change a little bit. I have watched with interest as members of the media and Hollywood elite speak out, and form the currents of what I hope to be social change.

I can’t help but have two thoughts: 1. Is this the current expression of a cycle that has been playing out historically for longer then we care to think? And if so, what can we learn; and 2. If making change and speaking out is such an uphill battle for this section of our society, what is it like for those without the access to support.

As I contemplate question 1, I recall my own career and journey in the area of Harassment and Discrimination investigator and trainer. I recall that when my Mother set up this consulting business, another series of public events were playing out quite publicly; the Anita Hill matter. I see that many of the issues are eerily similar. At the time I was graduating from High School and I can recall turning in an assignment on Harassment in the workplace, a topic not then readily discussed. Since that time, both my Mother and I have dedicated much of our lives to the proper investigation of Harassment cases in the workplace. We have completed more investigations than we can easily recall and have interviewed thousands of people about all manner of allegation. We have trained several cohorts of the brightest Human Resources professionals in this Country. The work has been very rewarding.

A few years ago, I was even lulled into thinking that maybe society had finally made some change; I was receiving far less sexual harassment investigation requests. I was optimistic. Now, I am not so sure. For the past few years, we have seen a mounting acceleration of high profile cases. The same themes are presenting themselves once again. I wonder, are we back to the same old territory we found ourselves in then?

Question 2 is equally tricky for me. On the one hand I believe that as discourse on the topic increases, as the headlines appear and become part of the collective, so too does the ability for those subjected to sexual harassment to report the issue, where they once may have not. I’m not sure if that is overly optimistic of me, I would like to believe that this is true, but deep down I know that there are many, have been many and will be many instances of injustice and abuse that are simply never reported or dealt with effectively. Power imbalance plays a central role. Unless and until that is effectively mitigated in the companies we work in and indeed the very fabric of our society, it is hard to see a clear path to effective change. When one party holds all the cards, what hand can a victim play?

It is with these thoughts in mind that I will continue to pursue my goal of conducting fair, balanced, unbiased workplace Harassment and Discrimination investigations and I will continue to throw myself into training our leaders to do the same. That is my hand to play and I intend to play it well. I hope to see you soon at a training event!

Out of Time

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Two cases which illustrate the reasoning applied when a Human Rights Tribunal considers whether a complaint was filed too late:

Case 1:

In this case, the Human Rights Tribunal considered the timeliness of a complaint filed, alleging discrimination in employment on the basis of sex (harassment). The employer denied the discrimination and applied to dismiss the compliant on several grounds. The allegations were serious in nature, including sexual innuendo, personal questions, name calling, jokes and comments about other women, as well as unwelcome physical contact. The complainant alleged that despite a number of reports and complaints, the employer took no appropriate action. The complainant alleged retaliation as well to the extent that she required extended medical leave. She filed a written internal complaint in January 2014. She was not provided with the report, no corrective action ensued and she was not provided with accommodation to return to work safely. The complainant indicated that she was dismissed in September 2014.

The employer provided evidence as to the external investigation conducted and offers to share the report of the internal investigation (subject to confidentiality provisions), which the complainant refused. They submitted that the allegations were found not substantiated, and that the complainant had been asked to return to work, yet did not return.

The complainant and the employer submitted arguments for their positions on whether the case should be accepted by the Tribunal as the allegations fell outside of the 6 months time period stated in the Code. The analysis of the Tribunal centered around s. 22(3) of the Code, which states: “If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that: (a) it is in the public interest to accept the complaint, and (b) no substantial prejudice will result to any person because of the delay.”

The finding was that the complaint was about 7 months late-filed. One of the complainant’s arguments in the late-filing was that she was pursuing other avenues, and when those avenues did not provide resolution, she filed with the Tribunal.

The finding was that the complainant should have filed with the Tribunal in time and the matter could have been deferred pending the outcome of the other process. Further, the Tribunal found that allowing the complaint forward would represent prejudice toward the employer. Accordingly, the complaint was not allowed to proceed and was deemed as filed out of time.

Case 2:

In this case, timeliness was also considered, but a very different outcome occurred. The complainant alleged sexual harassment during the term of her employment which ended on October 24, 2016. The complainant initially filed her complaint with the Human Rights Commission of another area, as the company was based there. Once she moved, she made inquiries at the Tribunal about the filing of her complaint and she filed a complaint in that area in April 2017.

The Tribunal’s analysis centred around the same section and considerations as with case 1. The case was filed May 8, 2017 and the last alleged discrimination event occurred on October 24, 2016.

In the analysis, the relatively brief length of delay weighed in favour of accepting the late-filed complaint. The complainant also noted medical concerns which delayed her finding, and which were a result of extreme harassment and assault in the workplace. The Tribunal found that the reasoning for this concern was not sufficient by itself to justify a delay in filing. The complaint was complicated as it involved two jurisdictions, which had vastly different filing deadlines. The Tribunal concluded that this attracted the public interest in allowing the complaint to proceed.

Next the Tribunal turned to the question of prejudice and concluded that no substantial prejudice would result to the employer due to the delay and the complaint was allowed to proceed.

I became interested in these cases when doing research in my area because of the difference in the outcome. I also noted reference to different late-filing times from Province to Province, something which we should all be aware of. I was also interested in the balancing of interests that the Tribunal does through the case law and the reasoning of an issue. Late-filing timelines are in place to ensure that those who have had their Human Rights denied may seek remedy in a timely manner. Also, employers can be assured that there remains an impetus for complainants to pursue remedy as quickly as possible, thereby helping every organization move forward with providing a workplace that is free of harassment and discrimination.

Fired for Spreading Pornography in the Workplace

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.. yet appealing the decision?

Mr S worked for the Province of Manitoba for over 30 years and was terminated following an investigation that addressed inappropriate computer usage in the workplace. He grieved the decision to terminate, though he did not dispute the substance of the allegations relied upon in the decision. The evidence clearly established that Mr S was using his office computer for inappropriate purposes, principally involving the accessing, receipt and dissemination of pornographic material to persons both within and outside the employ of the Province.

I used to see cases like this in the workplace quite regularly, during that relatively distant time when the Internet and computer connectivity at work was new and novel. It was often argued that people did not know any better or were not aware that the computer systems constituted the property of the employer and that the policies of the employer applied. I have not seen many of these cases lately, but as this decision comes from 2014 and 2015, and refers to cases of a similar nature in the Province; clearly they are still occurring. 

The Union did not dispute that Ms S’s conduct justified a disciplinary response by the employer, however they argued that some lesser sanction should be substituted. Mr S’s behaviour constituted hundreds, if not thousands of offensive messages including nudity and sexual activity, lewd jokes and other material. It occurred for at least 24 months. Some messages were particularly upsetting to management upon review; messages which were joking, negative and sarcastic remarks about the work government employees do. The employer had investigated 5 employees for improper computer use and the remaining 4 had retired or been allowed to resign. Mr S was not provided that opportunity.

Mr S was called to a meeting, and he said he did not know what it was about. The employer questioned him about the computer use and then left the room. Mr S was presented a letter shortly thereafter that had obviously been prepared ahead of time and which terminated his employment. The employer indicated that they would have accepted Mr S’s resignation at the meeting if he would have offered it, but he did not.

Mr S also had some prior discipline on record for similar behaviour, albeit 15 years ago. In the arbitration, Mr S showed remorse but could offer no explanation to his conduct other than “I guess I got caught up in it”. He said that he was “profoundly sorry”. Mr S had not offered the employer an apology up to the arbitration, which weighed against the idea that he was truly remorseful.

The arbitrator found that the misconduct by Mr S was serious, persistent, and very troubling in terms of the nature and the volume of the material he disseminated. He found that Mr S’s actions were not “merely impulsive” as they occurred over a lengthy period of time. However, the arbitrator found that Mr S should be provided the same opportunity to resign as the others referred to above. He found “Consistency and the avoidance of unfairness require that treatment.” Accordingly, the grievance was allowed in part. The arbitrator directed that Mr S may tender his resignation.

Sometimes I read these case decisions and wonder: this individual did something at work, that he knew was wrong, had been previously disciplined for it and yet this was repeated behaviour. The employer reacted reasonably and then found themselves in an argument that ultimately changed the outcome from a termination to a resignation. What is the benefit to Mr S? Simply that now the employer has to tell other prospective employers that he resigned versus was terminated? I guess that makes some sense…..perhaps what makes more sense would be not sending pornography etc. while at work, with employer equipment at all, much less for years and years.