Employers must treat these complaints seriously, but keep an open mind when investigating
The #MeToo movement has brought sexual harassment in the workplace into the spotlight over the past few years. The movement gained prominence when Harvey Weinstein was accused of sexually harassing and raping numerous women including actresses, models, and staff during his decades-long career as a Hollywood producer, inspiring more women to come forward with accusations against him and others.
The movement has made it easier for victims of harassment to come forward and for perpetrators to face consequences for their actions. It’s also pushed employers to take both proactive measures towards preventing harassment and better reactive measures when it happens in their workplace. Now that Weinstein has been convicted in New York on counts of criminal sexual act and rape, and faces more charges in California, he’s become one of many harassers that are facing the consequences.
Those consequences can be serious for perpetrators – when the conduct reaches criminal levels as with Weinstein, jail time is likely the result. In workplaces, sexual harassment generally warrants serious discipline such as termination of employment or at least a lengthy suspension, depending on the nature of the misconduct.
However, as with all allegations of employee misconduct, employers must conduct a fair and complete investigation to determine if the misconduct happened, how serious it was, and the effects on the victim. Given the ramifications for the accused, the truth should be obtained – because sometimes accusations of harassment are not really harassment.
B.C. tribunal weighs in
A worker at a British Columbia university worked closely with a faculty member that involved many planning meetings and often required trips out of town. The two worked well together and became friends – at least until one business trip when, after a dinner celebrating a successful day of meetings, the faculty member told the worker that “You will have to let me know if this is a misstep, but I’m crazy about you.”
This comment made the worker uncomfortable and the faculty member immediately apologized, but the damage was done. The worker began avoiding him as much as possible and though they continued to work well professionally, the worker felt her job was in danger and she was finding it difficult to deal with emotionally. After her probationary period was over, she reported the comment and accused the faculty member of grooming her for a sexual relationship.
The university investigated and found that the comment was inappropriate and crossed a boundary, but wasn’t sexual harassment. The worker filed a human rights complaint against the university, but the B.C. Human Rights Tribunal agreed with the university. The tribunal found that the comment was sexual in nature and unwelcome, but it was relatively harmless – particularly since the faculty member immediately apologized and continued to apologize afterwards and did nothing to harm her employment.
The faculty member was in a superior role but treated her equally and wasn’t her direct supervisor. In addition, the tribunal found the worker’s allegation of a pattern of behaviour to groom her was viewed in hindsight after the incident – she had no issues and didn’t feel professionally vulnerable before the comment: see The Employee v. The University and another (No. 2), 2020 BCHRT 12 (B.C. Human Rights Trib.).
There is no doubt in the case above that the worker felt vulnerable after the faculty member’s comment. However, the university conducted a proper investigation and the facts were that the comment was not serious – it was more of a poorly expressed comment of affection. Though the worker wasn’t happy with the result, the tribunal agreed the investigation was fair and the faculty member didn’t deserve to lose his job or be labelled a sexual harasser because of the comment.
The rise of the #MeToo era encourages the reporting of potential incidents of sexual harassment and there is no doubt in circumstances like the above workers should feel comfortable reporting incidents that make them feel uncomfortable. And it’s equally important that employers conduct fair investigations – that may find there was no harassment.