Worker turns up heat after dip in hot tub (Legal view)

Antics at retreat not harassment, but employer had duty to investigate: Tribunal
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 03/28/2011

Mischievous antics on a company retreat did not amount to sexual harassment but the employer breached an employee’s human rights by not taking her complaint seriously, the Ontario Human Rights Tribunal has ruled.

The woman who filed the complaint ran a corporation that provided bookkeeping services to Jarvis Ryan Associates (JRA), an accounting firm in Mississauga, Ont. Though the woman’s corporation billed JRA for her services, she had an office, telephone and email address at JRA and was listed as staff on its website.

In May 2008, JRA organized a retreat for partners, employees, family members and clients at a vacation rental property in North Carolina. The woman was invited and decided to bring her two children. Her husband didn’t go.

JRA paid for the guests’ expenses but alcohol was supplied solely by guests who contributed to its purchase.

On May 14, the woman put her children to bed and then went for drinks in the common area of the vacation property. She flirted with another employee during the evening and acknowledged she “accepted his affections.”

At one point in the evening, a partner at JRA suggested a group of them, including the woman, the employee and an intern, get into a hot tub. While in the hot tub, she began kissing the other employee. Both acknowledged it was mutual.

The partner and the intern eventually got out but the woman and the other employee stayed and continued kissing. Eventually, they decided to stop since they were both married.

At JRA’s office on May 20, the woman told a co-worker about what happened and said she “accepted it.” She saw the other worker in the office a few days later and felt awkward but sent him an email and phoned him for pictures from the trip.

One month after the retreat, on June 14, the woman told her husband about what happened. She then took one week off to discuss the situation with him. As they talked about it, she felt she had gaps in her memory and began to suspect she had been drugged that night. She began to think the partner had been involved in the activities and she did things she wouldn’t have allowed if she had been fully aware.

However, the other three hot tub occupants denied these new recollections and said nothing beyond what she initially remembered had happened. They also said she hadn’t indicated anything was unwelcome. On June 23, the woman felt she couldn’t return to JRA and resigned.

Her husband left several phone messages on the employee’s voicemail accusing him of drugging and assaulting her. The couple also called two other JRA partners to say she had been drugged and assaulted at the retreat and the partner who had been in the hot tub was involved. One of the partners felt she was lying to protect her husband’s feelings and the other denied her request to meet privately but said she would meet if others were present. The former employee took this to mean this partner was unwilling to discuss the alleged sexual assault.

Soon after, she received letters from the employee’s lawyer and JRA telling her not to contact them again. She began suffering from depression and poor health because of the situation.

In the fall of 2008, she met several times with another senior partner at JRA to settle up fees the firm owed her. Neither party mentioned the drugging and harassment accusations.

On Dec. 30, she filed a human rights complaint alleging discrimination and harassment in her employment on the basis of sex.

Though JRA argued she was an independent contractor, the tribunal found she was dependent on the firm for work, facilities, supervision and rates charged to JRA clients. Although the events in question took place outside of normal working hours and away from the workplace, they were related to the firm and its activities in Ontario, said the tribunal. These facts were sufficient for the tribunal to consider the matter to be one in respect of employment and connected to its jurisdiction.

Employee had little credibility but deserved investigation: Tribunal

The tribunal had some trouble with the woman’s account of events, as her allegations changed over time. In addition to asserting she was drugged well after the fact, she initially claimed she and other female guests had been videotaped. She didn’t pursue either of these allegations after there was no evidence to be found for either.

Her credibility was also hurt by her account of the hot tub activities, found the tribunal. The woman initially remembered only consensual activity and her new memories of a “few minutes of unwelcome contact” in the middle of the consensual activity didn’t come until some time later.

There was no evidence supporting her claims of sexual harassment at the retreat, found the tribunal. However, even though there was no evidence of the claims being true and her credibility wasn’t strong, JRA was required under the Ontario Human Rights Code to take reasonable steps to address the complaint.

JRA had an unofficial policy that a complaint about a partner would go to any of the other partners, but nothing was written down. The woman asked for a private meeting with one partner but she was refused and wasn’t given an opportunity to explain the situation. Another partner also didn’t act on the accusation after being told about it, said the tribunal.

“The fact is that (she) was saying she had suffered some form of assault during a JRA-sponsored event. Even if JRA thought her complaint unlikely to be found to be true and, given the circumstances, although there was discomfort in meeting with (her), privately or otherwise, there were other options open to JRA,” said the tribunal.

The tribunal found no reason to meet her claim for monetary compensation but found JRA failed in its obligation to investigate her complaint. JRA was ordered to train its management on their obligations under the code and hire a human rights expert to develop a written human rights policy and complaint procedure for employees to follow.

For more information see:

Anne-Marie Sutton v. Jarvis Ryan Associates Inc. (Dec. 7, 2010), 2010 HRTO 2421 (Ont. Human Rights. Trib.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, see employmentlawtoday.com.

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