Supervisor maintained there was a pre-existing consensual sexual relationship, but TTC should have taken closer look at power imbalance and credibility
Sexual harassment is not something to be taken lightly by employers. It’s especially important to get all the facts on workplace harassment if it involves employees between which there lies a power imbalance. In such circumstances, even what seems like a consensual relationship may involve fear and coercion – something those in a position of power should keep in mind when involved with a subordinate. And employers should consider that context when investigating and determining discipline for sexual misconduct on both sides.
A Toronto transit worker who was fired for inappropriate sexual misconduct while on duty and then filing a bad-faith sexual harassment complaint against a supervisor has been reinstated by an arbitrator who found she was in fact a victim of sexual harassment.
The 35-year-old worker was a bus driver for the Toronto Transit Commission (TTC), hired in 2007. She was a divorced, single mother with three children.
In February 2013, the worker was waiting at an intersection in downtown Toronto for her partner to pick her up after work when she encountered a TTC supervisor. She commented that it was nice to see a black person in a supervisory position and they began a conversation while she waited. She didn’t recall saying anything of significance, but according to the supervisor the worker was flirting with him and gave him her phone number.
About one month later, in March 2013, the worker and the supervisor crossed paths again, this time outside a subway station where the worker was sitting in a booth waiting for a streetcar. She was doing modified work collecting material from streetcars and putting it into garbage bags. According to the worker, the supervisor tried to pick her up by telling her she was sexy and he wanted something sexual with her, but the worker politely refused — she was dating a woman. She also felt it was inappropriate for a supervisor to hit on her.
However, according to the supervisor, they had a conversation that was sexual in nature, showed each other pictures on their phones, and discussed a threesome with the supervisor’s wife. He said the worker gave him a flyer for her party business — in which she was known as Miss Sexy. He also said afterwards they exchanged sexually-themed text messages, but never met outside work. He eventually decided it was going nowhere and he didn’t want his wife to find out so he blocked her number. The worker denied exchanging any texts with him.
The worker encountered the supervisor a third time in the summer of 2013 at a TTC office. The supervisor said the worker gave him another flyer for her party business but nothing of a sexual nature occurred. The worker couldn’t remember if she gave him a card, but said it was he who had asked her about her business.
The two had no further contact until Oct. 26, 2013, when the worker was driving a bus in the rain. The windshield wiper blade on the bus wasn’t working and the worker couldn’t see out the window, so she called transit control and was told to see the supervisor at the subway station on her route. She pulled into the station and the supervisor happened to be the one from the previous encounters.
Close encounter on bus
The supervisor checked the wiper and boarded the bus after passengers had disembarked. He asked the worker about her parties and she give him another flyer, after which they looked at pictures on her cellphone. According to the worker, the supervisor asked her to see dirty pictures of her, but she said she didn’t have any. He asked her to go to the washroom and take some if she wanted to go home early, but she refused.
The supervisor directed the worker to move the bus over against a wall while they waited for a service person to arrive. After she did so, the supervisor said he felt hot in the bus so he started unzip his rain jacket, parka, and windbreaker as he stood beside the driver’s seat. He told the worker he was aroused because of the conversation topic, to which he claimed the worker said, “oh yeah” in a flirtatious manner and reached over to him. He unzipped his pants and took out his penis, which he said the worker touched. He then asked her to kiss it but the worker refused, saying it wasn’t hygienic after touching the bus. The worker then saw the service person arriving and he pulled away from her, pulling his jacket over his crotch as the service person entered the bus.
However, according to the worker, she was shocked about his request to see dirty pictures of her. She recounted that the supervisor said he wanted to have sex and a threesome with her, and was standing over her as she sat in the driver’s seat. She said he pushed himself on her and tried to get her to touch his penis, but she kept saying no and denied reaching over to him. When she continued saying no, he stopped.
The supervisor wouldn’t permit the worker to leave because he said he needed a relief driver there to move the bus, but the worker pointed to a driver nearby and he allowed her to leave.
After the worker left the bus, she spoke to a co-worker and told her what had happened and the co-worker told her to report the incident. After she went home, she was emotional — she had been subjected to sexual assault when she was 12 and 14 years old — and eventually told a union representative about the incident.
The worker was off sick the next two days, but an assistant manager called her and told her she should report the incident. The worker filed a report and the TTC reported the matter to police, who took a statement from the worker. A short time later, the supervisor’s wife contacted the worker through social media to discourage her from proceeding with her complaint.
The TTC investigated the incident — and suspended the supervisor with pay during the investigation — including examining video surveillance footage of the station where the incident took place. The supervisor said he was shocked at the allegations, saying everything between him and the worker was consensual and she had never indicated “by body language, words or actions that she was not in support of what was happening.”
The supervisor told the HR consultant who was investigating there were sexual pictures of the worker online — which the worker had denied — and showed them on his phone. He also said “he did not want to colour her black — without making it seem (the worker) was an escort out of work.” The TTC told the supervisor that his behaviour on TTC premises with a subordinate was a violation of TTC policies. Rather than be fired, the supervisor resigned his position. However, he filed a complaint of his own that the worker’s sexual harassment allegations were in bad faith.
The TTC interviewed the worker and asked her to view the surveillance video, which showed the bus stopping beside a wall at the station, the supervisor standing beside the worker in the driver’s seat, and the supervisor looking around him. Soon after, the worker could be seen reaching towards him. The worker found it difficult to watch, but the HR consultant told her if she didn’t watch, she would accept the supervisor’s explanation of events.
The worker admitted that she had some provocative pictures online and she ran a party business, but she wouldn’t try to pick up or have a sexual relationship with a supervisor. She denied flirting with him or showing him pictures, and didn’t know how he got her phone number — she thought it could be through the flyers or social media. She also said she wasn’t reaching towards the supervisor in the video, but instead was pushing him away.
Investigation found consensual sexual misconduct
The TTC concluded that the worker and the supervisor had “engaged in consensual sexual behaviour on a TTC vehicle, while on TTC property and during working hours.” It also found the worker had provided misleading information and made a sexual harassment complaint in bad faith — and violated its respect and dignity policy, workplace violence policy, and code of conduct, and terminated her employment.
The arbitrator noted that the worker was a single mother of three children without much seniority, so she was in a vulnerable position compared to the supervisor and the incident should be viewed in that context. The arbitrator found that the supervisor “placed great reliance on what he claimed was a sexual relationship with the (worker) that pre-existed” in the TTC’s investigation. However, the three previous meetings between the worker and the supervisor were brief and, combined with the fact the supervisor acknowledged they didn’t see each other in the months between the meetings, there was no basis to the claim they had a pre-existing sexual relationship, said the arbitrator.
It was also unlikely there was any texting or calling after the second brief meeting, and the arbitrator believed the worker’s account that there was nothing of the sort.
The supervisor’s exaggeration of the relationship between the two also hurt his credibility regarding the incident on the bus. With no existing sexual relationship and the worker’s consistent assertion that she wasn’t interested in him, it made little sense for her to go along with the supervisor’s actions on the bus. In addition, the worker’s response afterwards and the power imbalance between them made it believable that she had been subjected to sexual harassment. Even though the supervisor said he didn’t exercise power in approaching the worker, his power remained throughout the encounter and likely led to the worker being coerced to the point that she did before leaving the bus, said the arbitrator.
The arbitrator determined the supervisor sexually harassed the worker. The TTC was ordered to reinstate her with full seniority and compensation for lost benefits.
For more information see:
• ATU, Local 113 and Toronto Transit Commission, Re, 2018 CarswellOnt 12619 (Ont. Arb.).