How a brain injury surfaces as a defense to sexual harassment years after the event
Mr Hogg worked for a Regional government in the capacity of Maintenance worker in one of their buildings. He worked with approximately 50 others, 95% of whom were female. Mr Hogg was terminated after about two years of service, for a variety of breaches to the Employer’s policies. In the letter of termination, the Employer also indicated that Mr Hogg was dishonest during the investigation and as such they possessed no hope of his rehabilitative potential. The Union filed a grievance of the termination on Mr Hogg’s behalf.
The termination letter outlined the reasons for termination which included: grabbing two female co-workers‘ buttocks; making an offensive and unwelcome comment to a male co-worker about his wife; asking a female co-worker if she was on her menstrual cycle; making sexual comments to co-workers with respect to his sex life with others; asking a female co- worker about detailed sexual experiences; making sexual gestures and comments about a “doweling” used to hold keys; and asking a female co-worker about the underwear she was wearing.
The Employer’s investigation was commenced by a complaint received by a male co- worker, Mr Troy who was working with Mr Hogg one day. Mr Hogg made a comment about Mr Troy’s wife and said that she liked it when he touched her buttocks. Mr Troy responded that if Mr Hogg made a comment like that again, he would knock out some of his teeth. Mr Troy reported the incident to the Employer and was concerned that he might be disciplined for making that comment to Mr Hogg. The Employer commenced an investigation, where numerous allegations about Mr Hogg emerged.
Several female co-workers testified that Mr Hogg referred to the size of his penis to them on various occasions. He made comparisons with a wood doweling that he carried with him that had keys attached to it. The female co-workers also testified that Mr Hogg made explicit comments about his sexual relations with other women. They indicated to him that his comments were “disgusting” and walked away when he made them.
Ms Cox and Ms Leach were mother/ daughter and working in the same unit. Mr Hogg made inappropriate comments to both of them. He also touched both of them on their buttocks on separate occasions.
Mr Hogg came up behind Ms Cox while she was bent over cleaning a toilet and grabbed her buttocks. She turned around, and he attempted to touch her breast. She asked what he thought he was doing. Mr Hogg said she had given him permission and she replied that she had not. He laughed and walked away. Shortly after the incident with Ms Cox, he did almost the exact same thing to Ms Leach. He also asked Ms Leach if she was “on her period” and asked her about the nature of her orgasms.
Mr Hogg made comments to both Ms Cox and Ms Leach that he would like to have a threesome with a mother/daughter combination. They replied that such a suggestion was disgusting.
Mr Hogg made a comment to Ms Leach that he could see through her pants and that he knew she was wearing “boy shorts”.
The Union argued that the environment in the workplace was permissive of sexual type comments between co-workers and claimed such comments were pervasive. The Union called several co-workers who gave evidence to this effect, however, testimony from Employer witnesses contradicted them. The Union witnesses relied on examples of past comments from employees who had long since left the work-place and/or had been disciplined for the behaviour.
Mr Hogg maintained that he had personal conversations with the female employees in question and said that they were initiated by the women. He said that they were comfortable in every conversation and instigated most of them. He did not deny most of the verbal allegations. In answer to the physical contact, he said that Ms Cox gave him explicit permission to “touch my ass any time”. He admitted to doing so on the occasion in question. He denied having touched Ms Leach in that manner and instead said that he had simply touched her hip to get her attention. Mr Hogg denied saying anything about a threesome. He said that during the Employer investigation, they asked him if he had “grabbed” Ms Cox’s buttocks and he replied that he did not because he had not grabbed it but had “touched” it.
The Union argued that the Employer did not follow their own policy in relation to the investigation. The specific concern was that a complaint came from Mr Troy and then the Employer was concerned about Mr Hogg’s behaviour and investigated further.
The also Union also argued that as a result of an acquired brain injury, Mr Hogg had a “filtration” problem. The brain injury was sustained eight years earlier.
The Union and the Employer each called expert medical witnesses to speak on the brain injury component. Their testimony disagreed. The Union expert stated the brain injury contributed to his behaviour in the workplace and the Employer expert disagreed. The Union expert relied on evidence from a survey given to Mr Hogg’s mother about his behaviour before and after the injury.
There was also evidence submitted that there had been no previous medical concerns regarding sexually impulsive actions or comments in the preceding eight years.
The Arbitrator ruled that the argument regarding following Employer policy had no merit. He stated that the policy is but one avenue to investigate and act, not the only avenue. He further stated that Mr Hogg had access to the grievance arbitration process to challenge any discipline assessed.
The Employer evidence regarding the environment was was preferred. The Arbitrator noted that the evidence presented by the Union witnesses was non-specific or dated.
The Arbitrator turned to Faryna v. Chorny to assess Mr Hogg’s credibility regarding the buttocks “touch” and preferred Ms Cox’s testimony to Mr Hogg’s. He asked the question: Why would a married woman, old enough to be his mother, give him carte blanche to lay a hand to that part of her anatomy?
The Arbitrator considered the brain injury. The crucial point was: if the behaviour was caused by a brain injury, it would not have suddenly surfaced eight years after the injury. The medical opinion preferred also indicated that any such impairment would likely cause more wide spread comments.
The Arbitrator concluded that the dismissal was justified and dismissed the grievance.