Hot tub antics at company retreat were not harassment but employer had a duty to investigate anyway: Tribunal
Wild accusations no laughing matter
It’s not unusual for people to get themselves in trouble when alcohol is involved and this is especially true at work-related functions. When a company retreat involved lots of the stuff along with a hot tub, it’s not surprising things got a little steamy between a couple of people in attendance.
However, the company was thrown for a curve when one of the people involved started making wild accusations of drugging and sexual harassment some time after the event. Few took the individual seriously due to the extent of the accusations and the actions of the complainant. However, this turned out to be a problem. Every employer has certain responsibilities when a human rights complaint is filed, regardless of the merits of that complaint.
Mischievous antics that took place 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.
Anne-Marie Sutton ran her own corporation that provided bookkeeping services to various organizations. She was hired as a contractor by Jarvis Ryan Associates (JRA), an accounting firm in Mississauga, Ont., to look after its financial books. Though Sutton’s corporation billed JRA for her services, she had an office, telephone and email address at JRA and the firm included her on its list of staff on its website.
In May 2008, JRA organized a retreat for partners, employees, family members and certain clients that would take place at a vacation rental property in North Carolina. Sutton was invited and decided to take her two children. Her husband didn’t go.
JRA paid for the guests’ expenses but everyone who wanted to drink alcohol contributed money to a communal pot to pay for what they wanted. Food was provided by a JRA client, Michael McColl. Sutton testified the drinks were too strong and the alcohol “flowed freely,” but JRA maintained the alcohol was supplied solely by guests and not the firm.
Bad behaviour at company retreat
On May 14, 2008, Sutton put her children to bed in their room and had some drinks in the common area of the vacation property. She flirted with McColl during the evening and acknowledged she “accepted his affections.”
At one point in the evening, Peter Jarvis, a partner at JRA, suggested Sutton, McColl, himself and an intern go to the hot tub. They all agreed and changed into their bathing suits.
Once in the hot tub, Sutton began “making out” with McColl. Both acknowledged it was mutual. At the time, Sutton was intoxicated and wasn’t aware of anything else. Jarvis and the intern eventually left the hot tub, and after continuing to kiss for a while longer, both Sutton and McColl agreed they should stop since both were married.
When they got out of the hot tub, the intern told Sutton not to worry since nothing happened. The next morning, she got up to say goodbye to McColl, who was leaving, but they didn’t mention the activities of the previous night.
Back at work at JRA’s office on May 20, Sutton told a co-worker about what happened and “accepted it.” She saw McColl in the office a few days later and felt awkward, but later sent him an email and phoned him for pictures from the trip.
Repressed memories after confession?
A month after the retreat, on June 14, 2008, Sutton told her husband that she had made out with someone on the retreat but stopped it. She then took a week off work to spend with her husband and discuss the situation. As they talked about it, Sutton felt she had gaps in her memory and began to suspect she had been drugged that night. She began to remember Jarvis had been involved in the activities in the hot tub and did some things she wouldn’t have allowed if she had been fully aware. However, Jarvis, McColl and the intern denied her new recollections were accurate, said nothing beyond what she initially remembered had happened and she hadn’t indicated anything was unwelcome. On June 23, 2008, Sutton felt she couldn’t return to work at JRA and resigned.
Sutton’s husband left several phone messages on McColl’s family’s voicemail accusing him of drugging and assaulting Sutton. They also called Ray Ryan, another JRA partner, to say she had been drugged and assaulted at the retreat and Jarvis had been involved.
They told Ryan not to do anything but they wanted him to know. Ryan found the accusation difficult to believe and felt Sutton was lying to protect her husband’s feelings. Sutton and her husband also told a third JRA partner, who denied Sutton’s request to meet privately but said she would meet if other representatives of JRA were present. Sutton took this to mean she was unwilling to discuss the “sexual assault.”
Soon after, Sutton received letters from McColl’s lawyer telling her not to contact McColl and another letter from JRA regarding the three partners. Sutton began suffering from depression and poor health because of the situation.
In the fall of 2008 Sutton met several times with another senior partner of JRA to settle up fees the firm owed Sutton. However, neither party mentioned the drugging and harassment accusations.
On Dec. 30, 2008, Sutton filed a human rights complaint alleging discrimination and harassment in her employment on the basis of sex.
Though JRA argued Sutton was an independent contractor, the tribunal found she was dependant on the firm for work, facilities, supervision and rate to JRA clients. The tribunal also found that although the events in question took place outside of normal working hours and away from the workplace, it was a team building event the was related to the business and its activities in Ontario. 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 Sutton’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.
The tribunal also felt Sutton’s credibility was hurt by her account of the hot tub activities. She initially remembered only consensual activity and didn’t have awareness of a “few minutes of unwelcome contact” in the middle of the consensual activity until more than a month later.
“I have been offered no cogent explanation for the evolving and, frankly, unreliable nature of (Sutton’s) memory surrounding these allegations,” said the tribunal.
“Participating in the hot tub interlude also appears to have been an entirely voluntary activity entered into by mature adults.”
Considering the testimony of others who were there and the observations of JRA employees who didn’t see any behaviour that indicated Sutton was the victim of any type of harassment, the tribunal found no evidence supporting Sutton’s claims of sexual harassment at the JRA retreat.
However, the tribunal noted that even though there was no evidence of Sutton’s 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.
Though JRA had an unofficial policy that a complaint about a partner would go to any of the other partners, that didn’t happen with Sutton. She asked for a private meeting with one partner but was refused and she wasn’t given an opportunity to explain the situation. Another partner, Ray Ryan, also didn’t act on the accusation after being told about it. The result may have been the same, but at least Sutton would have had the opportunity to properly present her case, said the tribunal.
“The fact is that (Sutton) 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.
Since it found no evidence of assault or harassment, the tribunal found no reason for monetary compensation for Sutton. However, it found JRA breached the code by failing to adequately investigate her complaint and had “what appears to be a complete lack of knowledge” about its human rights obligations. The firm was ordered to train its management on their obligations under the code and hire a human rights expert to develop and written human rights policy and complaint procedure for employees to follow.
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