Arbitrator cites ‘increased awareness of pervasiveness of sexual misconduct’
While employees accused of sexual harassment should be presumed innocent before proven guilty, an employer must consider its reputation when responding to such allegations.
That was evident in a recent decision in Ontario, when an arbitrator concluded Ryerson University in Toronto was justified in restricting an associate professor’s presence on campus during its investigation.
The professor had worked for the university since 1987 but in June 2018, he was advised that a student had made a complaint against him under the school’s Sexual Violence Policy. The allegations said the professor participated in drinking activities with students between 2007 and 2010 where he “directed unwanted attention to the complainant, including offering her drinks, flirting, putting (his) arm around her, and slow dancing with (his) arm on her lower back.”
The complaint also said the professor entered the student’s home in April 2010 and had “inappropriate contact with her, including unwanted physical contact, remarks, behaviours or communications of a sexually oriented nature.”
As a result, certain interim measures were imposed. For one, the professor was placed on leave with pay for the duration of the investigation. He was also prohibited from contacting or communicating with the student; he was banned from attending the Ryerson campus; and he was prohibited from having any unsupervised in-person contact with students, on or off campus.
The Ryerson Faculty Association filed a grievance, saying the latter two restrictions were “unwarranted and unprecedented.” It cited the fact the student was no longer attending Ryerson (though she did take counselling there), the incident happened eight years ago, and no history of misconduct was involved.
The association also said this involved “an indirect allegation of sexual assault.”
The adverse impact of the interim measures would be “quite significant,” said the association, and the scope of the campus ban was particularly broad. Overall, the professor would not be able to fulfil his duties, it said, and while the professor has not been suspended, “the case at hand is analogous to those cases involving a scenario of an employee being suspended in light of outstanding criminal charges or an investigation of misconduct.”
But in this case, “there was no preliminary assessment as to the overall veracity of the allegations prior to the imposition of the interim measures,” said the association.
Further, while some criminal charge cases face publicity and have an adverse impact on the reputation of the employer, in this case, there had been no such thing, it said.
However, Ryerson said its actions were “entirely without prejudice” and the nature of the allegations “dictate that it is incumbent upon the employer to take certain steps restricting the activities of the (professor) in furtherance of its obligation to provide for the safety of its employees and students and to ensure the integrity of the investigation process.”
Additionally, “from a reputational perspective, there is a legitimate concern with respect to the perception of the Ryerson community and the public generally, if the employer allows the (professor) to have ongoing student contact while the investigation of his alleged sexual misconduct is taking place.”
Arbitrator weighs in
In the end, the arbitrator agreed with Ryerson’s actions, saying the university endeavoured to take the appropriate steps to provide for the safety of its community members.
“There is no doubt that the employer was acting in good faith with respect to the imposition of the interim measures. As attested by the Challenging Sexual Violence Act, taking steps to ensure for the safety of its students and employees is indisputably a fundamental obligation of any college and university in Ontario,” said Brian Sheehan.
It was also incumbent on the employer to balance its legitimate interests and the interests of the professor, he said.
“Specifically, the onus is on the employer to establish it acted in good faith; and that the imposed measures were ‘reasonable and justifiable.’”
The professor was paid while the interim measures were in effect, so Ryerson was recognizing the interests of its employee, said Sheehan.
As for the lack of publicity around the allegations, “it is understandable and quite legitimate for the employer to be concerned about the impact on its reputation and image,” he said. “The relevant question is whether a fair-minded and well-informed public would have lost confidence in the employer if the disputed interim measures had not been imposed.”
Sheehan cited the “recent heightened societal recognition” of acts of sexual misconduct and violence towards women.
“This increased awareness of the pervasiveness of sexual misconduct/violence, combined with the resultant adverse impact on the victims, and the need for accountability for the perpetrators… would cause any objective observer to recognize the increased potential harm to the employer’s reputation and image if it was perceived to have failed to act vigilantly to protect it students and staff.”
And the fact the allegations pertained to a faculty member against a student would only amplify the justification for the employer to take such measures to protect its students, he said.
Takeaways for employers
When it comes to this type of situation, there's a variety of interim steps that are less drastic, said Carl Cunningham, partner at Bennett Jones in Toronto.
But it really depends on the facts of the case, and here the arbitrator found the employer had a reasonable basis for taking the steps it did, he said.
“The balance of power and the optics of what a reasonable person would expect to be done, I think that played a significant factor in the interim measures being imposed and ultimately upheld."
If the allegations aren’t too serious, some employers might try other measures, such as staggered start times for the individuals involved, or moving people’s workstations, said Leanne Monsma, lawyer at Field Law in Edmonton.
But in this case, the arbitrator specifically said that while less significant interim measures could have been imposed, they would have been more difficult to enforce and less clearcut.
“So he also took into account the benefit of having certainty.”
As for paying the professor while he’s being investigated, that makes sense, said Cunningham. If it’s an unpaid leave for a non-union employee, the employer runs the risk of a constructive dismissal.
"Whether it's union or non-union, the purpose of a paid administrative leave is that the employer’s identified or had a complaint or an issue arise, and they're not judging or finding fault, but they think that (it’s best to) remove the individual from the workplace until the investigation is concluded."
For an arbitrator, it’s a “huge factor” as to whether or not the person is receiving pay while interim measures are in force, said Monsma.
“What the arbitrator’s doing here — essentially they're balancing the employer’s right to take preventive action against the person’s employment and their ability to earn money and their financial well-being.”
As for reputation, one of the factors an employer can consider is the “reasonable person test,” said Cunningham.
“If the average person hears that a professor is accused of sexual misconduct vis-a-vis a student, would you find it reasonable for the school to put them on a paid leave? Or, conversely, would your perception and would your respect for the integrity of that institution be diminished If you found out that they allowed that professor to stay on campus during the investigation and continue to have access to students?"
The #MeToo movement has also had an influence in this regard, he said.
“In the last couple years, the reputation and brand of several companies was significantly tarnished by allegations related to sexual harassment. So, does it resonate more with an arbitrator, when you say, ‘Look at what's happened to these other companies? How can we take the chance of allowing this individual to continue to have access to students when we haven't had a chance to finish our investigation?’"
“In the current environment of the heightened sensitivity to allegations of sexual harassment and the effect that we've seen that it can have on an employer's reputation and brand, I think generally employers — compared to two years ago — are more inclined to be taking interim measures or putting someone on a paid administrative leave in order to reduce their potential liability."
Because of the social climate we’re in, even more damage to the university's reputation could potentially occur, said Monsma.
“While employers have always been entitled to consider their reputation as one important factor when it comes to imposing in terms of measures, I think that there's an increased recognition that they're allowed to do that now.”