A recent case illustrates the importance of conducting a careful, sensitive investigation of sexual harassment complaints.  An employer’s “unpardonable” response to a sexual harassment complaint has resulted in an arbitrator’s rebuke and $25,000.00 in damages.

The employee was the only female inspector with the Hamilton Street Railway, the City of Hamilton’s public transit service.  She filed a complaint with the City alleging that her supervisor made a derogatory comment and had engaged in inappropriate conduct for more than two years. The City reported that the supervisor had been dismissed with a severance package.

The employee testified about a number of incidents of harassment, including: she had received a number of “pornographic” e-mails from her supervisor and had asked him to stop, but he merely chuckled;  her supervisor had attempted to massage her shoulders; and he called her an “Irish skank”.

The arbitrator stated that she had “no difficulty” accepting that the supervisor’s conduct was sexual harassment.

The arbitrator decided that the City had not treated the complaint seriously, dealt with the complaint promptly and sensitively or investigated it properly, because:

-City managers did not contact the City’s “Human Rights Specialist” immediately, as required by the City’s “harassment and discrimination resolution” policy

-the managers “left the burden of dealing with the matter” on the employee

-the managers did not appreciate the employee’s particular vulnerability in the workplace, the power imbalance, or the impact it might have had on her

-the City did not “recommend and facilitate” separating the employee from her supervisor in the workplace after she filed the complaint

-the investigator failed to interview witnesses to some of the incidents, effectively leaving them unresolved

-the requirements of the City’s own “resolution procedure” were not followed in that there was no written report and the City did not report back to the employee on remedial actions, and there was no evidence that remedial actions were ever taken

-the City accused her of fabricating e-mails

The arbirator found that the City’s response to the employee’s harassment complaint had been “half-hearted and insensitive”.

The arbitrator ordered the City to pay $25,000.00 in damages, plus interest, to the employee for the discrimination and harasment that she had suffered.  The arbitrator also ordered the City to retain legal counsel or a consultant having expertise in human rights to evaluate the City’s “It Starts with You” program and provide human rights and discrmination and harassment training including in “the principles of a good investigation”.

City of Hamilton v Amalgamated Transit Union, Local 107, 2013 CanLII 62266 (ON LA)

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

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