Guidelines on conducting sexual assault investigations confirmed in Ontario

A poorly handled workplace investigation into an employee’s sexual assault complaint has led to the Human Rights Tribunal of Ontario (HRTO) providing some meaningful guidance to employers on how to conduct proper workplace sexual assault investigations.

In AB v. 2096115 Ontario Inc., the employee alleged that her supervisor sexually assaulted her in a hotel room and she complained to her employer. In a criminal proceeding, the supervisor pled guilty to a lesser charge of assault, admitted the allegations were true and was found guilty. The HRTO accepted the facts outlined in the sentencing hearing as proven for the purposes of the proceeding.

The employee alleged that when the employer failed to properly investigate and address her allegations, it violated her rights under Ontario’s Human Rights Code, discriminated against her on the basis of her sex and fostered a poisoned work environment connected to her sex.

The HRTO decided that the employee had experienced discrimination flowing from an unreasonable and inadequate investigation of her complaint, as well as from the investigator and her employer’s failure to properly address her complaint, contrary to the code.

It noted, as well, that pursuant to s. 46.3 of the code, any act done or omitted to be done in the course of an employee’s employment by an agent of the employer is deemed to be an act or thing done or omitted by the employer. Therefore, the employer was liable for the actions, omissions and decisions of the agent who provided human resources services to the employer and conducted the investigation into the complaint. 

The Laskowska criteria re the duty to investigate
The HRTO noted that its 2005 decision in Laskowska v. Marineland of Canada Ltd. established that human rights jurisprudence read the obligation to investigate the right to equal treatment in employment under the code. It followed the 10 criteria set out in Laskowska for considering whether the duty to investigate has been satisfied in a particular case:

Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? The evidence demonstrated that the employer was aware of the allegations the complainant was making about her supervisor’s conduct.

Was there a suitable anti-discrimination/harassment policy? There were suitable policies in place at the time the complainant reported the harassment to her employer.

Was there a proper complaint mechanism in place? The policies set out the steps to be taken in investigating allegations.

Was adequate training given to management and employees? The employee did not recall being trained on the anti-violence and harassment policies or seeing them posted. However, her knowledge of policies was not relevant to the issue of whether her rights were breached. What was relevant and important was that the investigator did not refer to the policies during her investigation and never considered whether the employee’s supervisor had violated any policies. Had the investigator followed the policy, she may have conducted a thorough and proper investigation.

Once an internal complaint was made, did the employer treat it seriously? The investigator did not treat the allegations seriously. Effectively, she did not conduct an investigation. The employer provided a detailed version of what happened and, according to the policy, the investigator was required to put the employee’s allegations to the supervisor and ask him to provide his own version in response. However, the investigator did not do that — she did not put the allegations to the supervisor and ask him to respond, so she did not have two versions to compare. The investigator did not conduct a reasonable investigation, said the tribunal.

Did the employer deal with the matter promptly and sensitively? In failing to conduct a proper investigation, the investigator did not act sensitively or show respect to the employee. She advised the employee that the investigation was complete less than half an hour after the employee sent her version of events, with no details of what was concluded or how the investigation was completed. Objectively, this would have had the effect of worsening the employee’s experience as an employee because, “It conveys an indifference to the complainant’s situation and is a denial of her dignity.”

Did the employer reasonably investigate and act? The HRTO found that the investigator did not reasonably investigate and act.

Did the employer provide a reasonable resolution in the circumstances? The employer did not come up with a reasonable resolution. The employee had to suggest that she not report to the supervisor when she returned to work. Evidence was not presented to demonstrate that the employer considered a change to the supervisor’s employment as a resolution. The employee had to come up with her own resolution to leave and take a lower-paying job when she continued to encounter the supervisor in the workplace. Furthermore, the investigator’s suggestion that the employee turn to the employee assistance plan was not a reasonable resolution in the circumstances.

If the employee chose to return to work, could the employer provide them with a healthy, discrimination-free work environment? The prohibition against discrimination in employment under the code affords employees the right to be free from a poisoned work environment. Whether a poisoned work environment exists must be considered from the perspective of an objective bystander. A poisoned work environment refers to “harassing or discriminatory comments or conduct that extends to create an overall impact on the workplace that is intolerable, hostile, negative for the employee and is a condition of the employment.”  Using an objective standard, the employee was not free from a poisoned work environment for the following reasons:

• The employer failed to consider how to avoid having the supervisor interact with the employee and allowed him to continue to do so, creating an intolerable atmosphere at the employee’s workplace. As it was a condition of employment that she endure this poisoned atmosphere, she removed herself and sought other employment that paid less.
• Upon making inquiries of the investigator after leaving her employment, the complainant received dismissive and insensitive responses to her inquiries. 

Did the investigator communicate its finding and actions to the complainant? The investigator’s own evidence was that she never communicated her findings or the details of any action taken as a result of the investigation to the employee or her supervisor.

Bottom line for employers
The decision in 2096115 Ontario puts employers on notice that, in order to conduct a thorough and proper workplace sexual assault investigation that does not violate a complainant’s rights, they should ensure that:

• They have a suitable anti-discrimination/harassment policy in place that contains a proper complaint mechanism and outlines the steps to be taken in investigating allegations and ensure that employees and management receive adequate training on the policy.
• During investigations, investigators refer to the employer’s policies and consider whether the accused individual violated any of them. 
• Investigators treat the complainant’s allegations seriously. If the applicable policy so provides, the investigator should put the complainant’s allegations to the individual under investigation and ask them to provide their own version in response. This will provide the investigator with two versions to compare and weigh. 
• Investigators act sensitively and show respect to complainants. They must not convey indifference to complainants or deny them their dignity. This requires more than merely advising a complainant that the investigation was completed, with no details of what, if anything, was concluded or how the investigation was completed. 
• Complainants are presented with reasonable resolutions and are not expected to come up with their own. Suggesting that a complainant turn to an employee assistance plan is not a reasonable resolution when an employee may be experiencing emotional distress in the workplace due to sexual harassment or assault.
• If a complainant chooses to return to work, that they provide them with a healthy, discrimination-free work environment. The employer should ensure an absence of harassing or discriminatory comments or conduct, avoid having the alleged assaulter interact with the complainant and ensure that the complainant’s inquiries are not dismissed or treated insensitively. 
• The investigator communicates their findings and the details of any action taken as a result of the investigation to the complainant.

Failure to follow these guidelines could lead to unreasonable and inadequate investigations of workplace sexual assault complaints and discrimination against complainants on the basis of their sex.

For more information, see:

• AB v. 2096115 Ontario Inc. C.o.b. as Cooksville Hyundai, 2020 HRTO 499 (Ont. Human Rights Trib.).
• Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30 (Ont. Human Rights Trib.).

Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or [email protected] Sari L. Springer is office managing partner for Littler LLP in Toronto, specializing in employment law and higher education law. She can be reached at (647) 256-4509 or [email protected]