Canada: Respond Reasonably To Workplace Harassment Complaints

At some point in every workplace, a situation will arise that warrants an internal human rights investigation. The Human Rights Tribunal of Ontario looks closely at how employers respond to harassment complaints. While a flawed investigation can increase the risk of human rights litigation and expose the employer to significant damages, a reasonable response to a harassment complaint can reduce the employer's exposure to liability. In this post, we consider the decisions of the Human Rights Tribunal of Ontario in two decisions dealing with workplace harassment complaints: Sears v. Honda of Canada Mfg. and Morgan v. University of Waterloo.

Sears v. Honda of Canada Mfg., 2014 HRTO 45

Sears had problems with his vision, including severe myopia and colour blindness. Honda was aware of his disability. In 2010, Honda made changes to appearance of certain computer software that Sears worked on, including changing the colour of text and background. With these changes, Sears experienced trouble reading from his computer screen and this caused him stress and anxiety. Compounding the problem, Sears also complained that a co-worker was harassing him, including by calling him a "blind dog". By December 2010, Sears left work claiming stress.

It took Honda almost a year to put accommodation measures in place. In November 2011, it modified the software to make the onscreen text more legible to Sears. It trained Sears on how to adjust the screen presentation, added some special lighting and magnification, and some other accommodation measures. Nonetheless, three months later when Sears' employment was terminated, he filed a human rights complaint alleging that his dismissal contravened the Ontario Human Rights Code. Sears alleged that Honda had failed to accommodate his disability and had failed to take appropriate action in response to his harassment complaint.

It is interesting that Sears had not formally requested accommodation after the initial changes to the computer software caused him problems. But of course Honda was aware of his disability, and the Tribunal picked up on that very point. It found that Honda had failed to meet its procedural duty to accommodate by not inquiring, on its own initiative, whether Sears required accommodation in the circumstances. The Tribunal also noted that Honda had not trained supervisors on their "duty to inquire when a need for accommodation comes to their attention". Nor did it have a written accommodation policy. The Tribunal concluded that Honda had breached the Human Rights Code because, even though it had information sufficient to trigger the procedural duty to accommodate, it did not begin to consider accommodation until after Sears had gone on stress leave.

The Tribunal then turned to Sears' harassment complaints. Following its established jurisprudence, it reiterated that the Human Rights Code imposes a duty on organizations to investigate complaints, and that a failure to investigate can attract liability, even if the allegations underlying the complaint are ultimately unsubstantiated and dismissed. The Tribunal concluded that Honda's failure to adequately investigate Sears' complaints was incompatible with respect for his dignity. While acknowledging that it was difficult to judge how much of Sears' hurt feelings, anxiety and loss of self-respect could actually be attributed to the employer's failure to address his harassment complaints, the Tribunal accepted that such failure had clearly exacerbated his distress. On that basis the Tribunal ordered Honda to pay Sears $35,000.00 for these intangible losses.

Morgan v. University of Waterloo, 2013 HRTO 1644

By contrast, a reasonable response to workplace harassment complaints reduced an employer's exposure to liability in Morgan v. University of Waterloo. There the Tribunal did not award damages against the employer, even though it found that the alleged harassment had actually occurred.

Morgan and a co-worker named Mackay were employed as counsellors at the University. When Morgan complained that Mackay had sexually harassed her at a conference, the University conducted a prompt investigation and temporarily moved Mackay to a satellite office. The internal investigator, who had specialized investigative skills and human rights knowledge, prepared an investigation report after meeting with Morgan, Mackay, and witnesses who were present at the conference. The report was substantive, including a summary of the investigator's findings, a chart with facts, and a section on the credibility of witnesses. The investigator reported that there was no direct evidence to substantiate Morgan's sexual harassment allegation and, therefore, that no firm conclusion could be reached with respect to the allegation. Morgan's Director met with her and explained the results of the investigation. Mackay was returned to work in the Counselling Services' department.

Before long Morgan filed another internal complaint alleging that Mackay was sexually harassing her, this time by standing too close to her and refusing to move aside when they passed one another in a hallway. Mackay denied the allegations, and Morgan's Director asked her not to report any further incident involving Mackay unless it involved physical contact. Unsatisfied with that response, Morgan filed a complaint with the Human Rights Tribunal of Ontario naming both Mackay and the University as respondents. She alleged that she had been sexually harassed by Mackay and that the University had failed in its duty to investigate her initial and subsequent complaints.

Ultimately, the Tribunal found that Mackay had sexually harassed Morgan at the conference and ordered Mackay to pay her $7,500.00 as compensation for injury to her dignity, feelings and self-respect. However, and even though the Tribunal came to a different conclusion than the University did with respect to Morgan's initial sexual harassment complaint, the Tribunal found that the University had met its duty to investigate under the Human Rights Code by conducting a "reasonable" investigation. The Tribunal also noted that the University had a well-established and structured complaints mechanism which utilized persons with specialized investigative skills and human rights knowledge. In the end, no damages were awarded against the University.

Conclusion

As the Honda and University of Waterloo decisions demonstrate, the Human Rights Tribunal of Ontario will scrutinize an employer's response to workplace harassment complaints very closely. If the employer does not have a policy for investigating harassment complaints or fails to live up to the standards set in its policy, this will almost certainly be held against the employer in litigation. The employer must take all harassment complaints seriously, and respond appropriately, even if the issue appears to be clear-cut or the complaint seems frivolous. A workplace harassment investigation does not have to be perfect, but it must be reasonable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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