How the decision to address a situation was right, but the words were not
Ms Krout is an elementary teacher employed in an Eastern School District. When she was seven and a half months pregnant, Ms McGintey (her Principal) spoke to her about the attire she wore to school that day, telling her she was dressed inappropriately. A grievance was subse- quently filed.
The Union objected to the Principal having spoken to Ms Krout about her attire and, in any event, objected to some of the comments made by the Principal to the grievor. The griev- ance stated that Ms Krout was subject to intimidation, harassment and discrimination, includ- ing sex discrimination, and that the Employer exercised its management rights in an arbitrary, discriminatory, unfair and bad faith manner.
Both Ms Krout and Ms McGintey testified at the grievance hearing. While they testified to similar effect about a number of matters that were discussed during their conversation, they had different recollections about whether certain statements were made by Ms McGintey. Therefore, it was necessary for the Arbitrator to decide which version of events occurred.
Both Ms Krout and Ms McGintey were emotional at times during their meeting and the Arbitrator felt it was possible that their heightened emotions at the time impeded their ability to absorb and retain the details of the conversation with precision. As well, both testified more than two years after the conversation in question, and “recollections naturally tend to fade with the passage of time.”
The Arbitrator concluded, for a number of reasons, that in most areas of dispute concern- ing key aspects of their conversation, Ms Krout’s version of events was to be preferred. Ms Krout had a very clear and precise memory of certain things Ms McGintey said. She told three colleagues, her husband and her Union representative about the statements later that same day. She also wrote notes later that day with the detail of many of the statements made during the conversation.
Ms McGintey spoke to the Vice- Principal and Superintendent about what had happened, but she made no contem- poraneous notes of the conversation, only writing down her recollection of the con- versation some five months later.
A few years ago, Ms Krout was teach- ing at the school and Ms McGintey be- came the Principal. During Ms McGintey’s first year there, she received a few expres- sions of concern about some of the outfits Ms Krout and another teacher wore to school. Ms McGintey, herself, had con- cerns about the appropriateness of some of their clothing. For a number of reasons, she decided not to speak to either of the teachers about their clothing that year. She was new to the school and wanting to tread carefully with the staff for the first year. She was also uncertain what the rules and workplace standards were for that particu- lar school. Also, the Code of Conduct at the time did not clearly prohibit the sort of attire occasionally worn to school by Ms Krout and the other teacher.
That year, the Code of Conduct was amended, so that for the following school year it would include the statement that “Underwear cannot be showing and no revealing necklines.” Parent and staff groups approved the changes but the Un- ion was not asked for input or approval.
The first day of school for the new school year was September 7. Ms Krout was seven and a half months pregnant. Ms McGintey saw no staff that were in her opinion dressed inappropriately, including Ms Krout.
The next day, Ms Krout wore a blouse and camisole to school that did not cover an inch or two of the top part of her breasts and her cleavage. Ms McGintey saw her sometime that morning and asked to speak with her, without telling her what it was in regard to.
Ms Krout and Ms McGintey met alone, later that day in Ms McGintey’s office. Ms Krout could tell that Ms McGin- tey was upset and asked her about it. Ms McGintey replied that she was as they were about to have a difficult discussion. After some hesitation, Ms McGintey told Ms Krout that the size of her breasts were dis- tracting to staff and students, and that she had received complaints about the appro- priateness of some of her clothing.
Ms Krout was upset by the comments. She told Ms McGintey she was seven and a half months pregnant and asked what she was supposed to do about her breasts. Ms McGintey told her that she needed to wear clothing that drew less attention to her breasts and told her she was not to wear clothing with a revealing neckline.
In response to some questions, Ms McGintey said that perhaps she was more prudish than Ms Krout. Ms Krout said she did not feel her clothing was inappropriate and said that she would have to wear a tent to hide the fact that her breasts were large.
Ms Krout pointed to other staff who were dressed in a similar manner and asked Ms McGintey if she had spoken to them. Ms McGintey said that she had not seen that staff member that day. Ms Krout asked for the names of people who had complained but Ms McGintey would not tell her.
The conversation became increasingly confrontational, emotional and upsetting. Ms Krout said that she felt she was being discriminated against and that she had a case for discrimination and was going to look into it. The meeting ended on that note.
The Union argued that there was nothing inappropriate about the attire worn on the day in question. The Union also argued that the treatment of Ms Krout was discriminatory, as no other staff were talked to in spite of similar clothing.
The Employer argued that Ms McGintey correctly applied the rule. Fur- ther they argued that no evidence was pre- sented that she saw others dressed in a similar manner.
The Arbitrator ruled that Ms McGin- tey properly concluded that Ms Krout’s attire breached the rule. He found nothing discriminatory or improper about Ms McGintey’s decision to speak to Ms Krout about her attire that day. He concluded that Ms McGintey properly exercised the duties of her office in deciding to speak to Ms Krout about her outfit
The Arbitrator addressed some of the comments Ms McGintey made to Ms Krout. He ruled that comments about the size of her breasts and the need to bring less attention to them were inappropriate. He stated that the size of Ms Krout’s breasts should have been irrelevant to the issue of whether Ms Krout was displaying a revealing neckline or was dressed inap- propriately. He ruled that the comments constituted harassment of Ms Krout.
The Arbitrator ruled that there was insufficient evidence to conclude that speaking the Ms Krout was discriminatory on the basis that no others were spoken to.