Alberta worker’s perception of harassment doesn’t hold up without evidence

Temp worker complains of 'overtly sexualized' greeting, inappropriate touching

Alberta worker’s perception of harassment doesn’t hold up without evidence

The Alberta Human Rights Tribunal has dismissed a worker’s sexual harassment and discrimination complaint for lacking proof and alleging incidents that would not objectively be harassment.

“Perception isn't sufficient to define whether something is harassment or not – an employee feeling they may have been harassed will not determine an issue,” says Dylan Snowdon, an employment lawyer with Carbert Waite in Calgary.

The worker was an employee of an employment agency. In the summer of 2018, the agency assigned the worker to a temporary appeals assistant position with Alberta Seniors, Community, and Social Services (ASCSS), a government body that provides support for appeals under certain provincial legislation.

The assignment was set to last until ASCSS completed a recruitment process for a permanent appeals assistant.

On Oct. 10, a successful candidate for the permanent position accepted the job offer. The next day, the manager informed the worker that once it received the signed offer letter, ASCSS would provide the worker with one week’s notice of termination.

Sexual harassment allegations

One week later, the worker accused the appeals lead for her team of sexual harassment. Management met with the worker and ASCSS arranged for the worker to not perform any more work for the appeals lead.

On Oct. 26, ASCSS provided the worker with notice that her last day of work would be Nov. 2. On Nov. 1, the department ended her assignment one day early, although it still paid her for Nov. 2.

The worker filed a complaint of gender discrimination, alleging that she was subjected to sexual harassment by her superior, workplace harassment by her direct supervisor because of her complaint, and termination of her short-term contract shortly after she made sexual harassment allegations.

The worker listed the following as instances of harassment from the appeals lead:

  • He said hello to her in a “highly and overtly sexualized manner”
  • He inappropriately touched her in the photocopy room
  • He hung around her desk and engaged in inappropriate conversations with another female employee
  • He deliberately bumped into her near the coffee room
  • He invited her to follow him on Twitter
  • He admitted to his behaviour and apologized when she confronted him.

The worker also said that after she brought her harassment allegations to her supervisor, the supervisor started greeting her in a manner that made her uncomfortable and created a toxic environment. She also said that the supervisor tried to discourage her from filing a complaint by saying that her employment with ASCSS was up to her.

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Allegations refuted

The appeals lead denied all the harassment allegations. Four other ASCSS employees testified that they never saw him greet any employees inappropriately in the open office area. He said that the only incident he could think of in the photocopy room was him reaching for a stapler and possibly brushing against her.

The appeals lead also denied spending any time around the worker’s desk and no one else witnessed any conversation. Members of management all confirmed that the worker did not bring any concerns to them.

The appeals lead acknowledged one incident near the coffee room where they both entered a high-traffic hallway and he may have put out his hand to avoid a collision, briefly touching the worker’s shoulder. He said he discussed the incident with the manager afterwards.

As for the Twitter invitation, the appeals lead said that there was a discussion about Twitter in an open area, but no one other than the worker raised any concerns about it. He denied inviting her to follow him on the platform.

The appeals lead agreed that the worker confronted him, but he denied any discriminatory conduct and apologized if he had done anything to upset her.

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No discouragement

The supervisor denied discouraging the worker from filing a complaint and noted that they contacted the HR department immediately. The worker had been hired on a temporary basis and she was sent home with pay a day earlier because she was uncomfortable at work, the new permanent employee was doing most of the work by then, and there was no manager onsite to monitor the matter.

“If I was an HR professional receiving a complaint like this, I'd be saying, “What evidence can we get or what evidence does the complainant have?” says Snowdon. “There wasn't any evidence or anyone that was able to corroborate what the [worker] was saying, whereas the employer had clear explanations that the incidents were innocuous and multiple people to advance them.”

The tribunal noted that the worker’s gender, which was female, was a characteristic protected from discrimination under the Alberta Human Rights Act. This was the first part of the test for prima facie discrimination, while the remaining two parts were whether the worker experienced an adverse impact and whether the protected characteristic was a factor in the adverse impact, said the tribunal.

The tribunal found that the appeals lead and management were credible in their versions of events. They were consistent and corroborated by other witnesses. The appeals lead acknowledged that he may have accidentally touched the worker rather than completely denying any physical contact, and the fact that the worker didn’t make any complaint supported his version of events, the tribunal said.

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Objectively not harassment

The tribunal also found that the incidents weren’t sexual harassment even if they had happened. The greetings in the workplace weren’t viewed as sexualized by anyone else – there were no other witnesses supporting the worker’s version and, since it was an open workplace, others would have noticed, the tribunal said. As for the Twitter invitation, that could not be objectively viewed as harassment, added the tribunal.

The worker’s allegations relating to minor incidents probably hurt her cause in light of the more serious allegations, since she wasn’t able to provide concrete evidence or corroborating witnesses, says Snowdon.

“It's tempting to want to throw absolutely everything at the wall and hope that you get a few things to stick, but that strategy rarely works – it's much better to focus on the primary issue,” he says.

The tribunal found that the appeals lead’s apology was not an admission of harassing behaviour. He didn’t acknowledge any such behaviour and he claimed the apology was generic for anything that may have offended the worker, said the tribunal.

It was also evident that the worker did not make a formal harassment complaint regarding any of the incidents until she received notice of termination, said the tribunal.

Temporary assignment

As for the end of the worker’s assignment, she was hired on a temporary basis and she was told that her employment would be ending when the permanent hire accepted the offer. The stated reasons for sending her home with pay for the last day – the decreased work, uncomfortable environment, and lack of a manager onsite – were reasonable and credible, the tribunal said.

The tribunal didn’t need to go through the full three-part test for discrimination because it found no evidence supporting the second part, says Snowdon.

“The tribunal didn't find that there was a negative impact suffered by the employee, which is pretty unusual,” he says. “For every single one of the allegations, the tribunal found that the alleged action didn't occur or there was insufficient evidence for them to determine that it occurred.”

The tribunal determined that most of the worker’s allegations were “based on her interpretation of innocuous actions” which had “no link to sexual conduct except her own assessment.” It noted that assessing alleged unwanted contact must be with an objective element rather than what the worker alone felt.

The tribunal determined that there was no sexual harassment – and no adverse effect – and no discrimination. The complaint was dismissed.

Many workers are unhappy with how HR responds to harassment complaints, but HR is in a difficult position, according to experts.

Perception vs. objective assessment

An employee’s perception of being harassed is important to assess the seriousness of the complaint initially, but as the process moves on, perception is less important than objectivity, says Snowdon.

“I think that when an employee feels that they've been harassed, sometimes there's a gray area and we don't know for sure what happened,” he says.

“Was it at the absolute highest level of bad behavior, or with partially culpable conduct? I think the tribunal often has to make those difficult calls,” adds Snowdon. “In this situation, the call wasn't so difficult because there was no evidence that these things occurred – but even if they had, no reasonable person, as determined by the tribunal, would have perceived those things to be harassment.”

See Omeltchenko v. His Majesty the King in Right of Alberta (Seniors, Community, and Social Services), 2023 AHRC 18.

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