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Employer Ignores Harassment Complaint at its Peril

08-Mar-10

A recent decision of the Canadian Human Rights Tribunal reinforces the importance of taking adequate steps to deal with complaints of sexual harassment.

In the case, a female employee complained to her supervisor that she was being sexually harassed by a co-worker. The sexual harassment was serious and included inappropriate comments about the attractiveness of her breasts and buttocks, unwanted touching, inappropriate comments about the co-worker's desire to engage in sexual relations with her, phone calls and text messages about sexual positions and activity, and the exposing of his genitals. The complainant's supervisor took her concerns to his superiors and advised them he wanted the perpetrator terminated. His superiors decided instead to transfer the individual to another office and to advise him that he was to have no further contact with the complainant.

Unfortunately, 16 days after the change in location, the sexual harassment of the complainant resumed and continued for approximately another year. The employer took no further action despite repeated complaints.

At the hearing, the employer relied on the fact that it had policies and procedures in place to deal with all grievances, including those of harassment. It further testified that if the complainant had made a formal written complaint, it would have dealt with the situation.

The Tribunal found the suggestion the employer's inaction was justified because the complainant did not make a formal written complaint to be "absurd". The Tribunal found that, as recognized in its own policies, the employer had a duty to provide a harassment-free workplace. Further, the employer's policies provided for a disciplinary process, including the possibility of a termination, when the work of one employee was disrupted by another. The employer completely failed to follow its own policies, and although it took some steps to deal with the sexual harassment, when its initial action of moving the perpetrator did not work, it failed to do anything further.

The Canadian Human Rights Act contains a section which allows employers to avoid liability for the discriminatory actions of its employees if it can show that it did not consent to the behavior and exercised all due diligence to prevent the behavior from being committed and, subsequently, to mitigate or avoid the effect of the behavior. Although the Alberta Human Rights Act does not contain a similar provision, employers may be able to avoid liability for greater damages where they actively deal with complaints of sexual harassment and take steps to prevent the harassment from continuing or happening again.

As a result of the employer's failure to deal appropriately with the sexual harassment in this case, it became liable for the complainant's lost wages for a period of 1 year following the termination of the complainant's employment, plus $16,000 for the complainant's pain and suffering. The Tribunal found that the employer's actions exacerbated the complainant's suffering and her health problems and ultimately led to her being treated as an outsider in her own community.

This case underlines the importance of having an effective harassment policy. This means not simply having a policy in place, but ensuring that the policy is followed both in terms of investigations and in providing effective remedies and consequences.

 

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