In the recent decision of AB v 2096115 Ontario Inc (Cooksville Hyundai), the Human Rights Tribunal of Ontario (“HRTO”) held that an inadequate and unreasonable workplace investigation into allegations of sexual assault constituted discrimination on the basis of sex, contrary to the Ontario’s Human Rights Code [Code]. This decision builds on existing human rights jurisprudence which recognizes that the right to be free from discrimination with respect to employment under s.5(1) the Code includes a duty for employers to properly investigate complaints of discrimination and ensure a work environment free from discrimination.
Background
AB was an employee at the employer car dealership when she submitted a complaint about an incident in which she was sexually assaulted by her manager. An external human resources advisor was appointed to investigate the complaint. The employer’s Workplace Harassment Policy provided for an investigation process which involved putting the complainant’s written allegations to the respondent, providing the complainant with a written reply from the respondent, and informing both parties of the findings and any corrective action at the end of the investigation. However, according to the evidence, none of these steps occurred in the investigative process.
When the investigator first met with AB, the investigator proposed that the manager apologize to her as a solution to her complaint. AB rejected this proposal and requested to be able to report to a different manager. The investigator also informed AB of support services under an employee assistance program (“EAP”) that was available to her.
AB later provided the investigator with a detailed written account of the incident and her allegations, as requested by the investigator. On the same day, less than 30 minutes later, the investigator informed AB that the investigation was complete, and that they would accommodate her request to report to a different manager. The investigator had met with the respondent manager on the same day and found that he had no recollection of assaulting AB, despite that the investigator did not directly question the respondent about whether he had engaged in the alleged misconduct. Given the respondent’s broad denial of wrongdoing, the investigator took the position that she could do nothing more given the complainant and respondent told different versions of the events.
Throughout the investigation, AB expressed her distress and anxiety about the incident to the investigator and other co-workers, and had been given a week off work with pay. On her return, AB continued to encounter the respondent manager at work, despite no longer reporting to him. Eventually, AB asked to be transferred to a different, lower paying job at a different dealership affiliated with the employer.
AB later contacted the investigator again after having been triggered about the incident and expressed her distress and dissatisfaction with the lack of consequences for her former manager’s actions. The investigator responded that AB’s allegations had been investigated and denied by the respondent manager, that AB was the only one who recalled “sexually pleasing” the respondent, and that the fact that AB was no longer required to report to him was a sufficient resolution to her complaint.
AB brought an Application to the HRTO alleging, among other things, that the employer had discriminated against her on the basis of sex by failing to properly investigate and address her sexual assault allegations.
AB had also filed a police complaint regarding the same incident of sexual assault. This led to a criminal proceeding in which the respondent manager pled guilty to the assault.
The HRTO Decision
The HRTO accepted AB’s allegations of events from the criminal proceeding as proven because the manager admitted to the allegations being true in his plea.
The HRTO ultimately held that the investigation into AB’s complaint was inadequate, unreasonable, and conducted insensitively, effectively depriving AB of her right to a work environment free from discrimination, in breach of the Code. This conclusion was based on the Tribunal’s findings that the investigator:
- did not refer to the relevant workplace violence and harassment policies during the investigation or consider whether the respondent manager had violated those policies;
- failed to follow the procedures outlined in the relevant policies, including the requirement to put AB’s allegations to the respondent for a response or speak to anyone else who may have information, and that her failure to do so was an indication that the investigator did not take AB’s allegations seriously;
- was unable to determine whose version of events was accurate as a result of her own failure to conduct a proper investigation; and
- failed to act with sensitivity in response to AB’s concerns regarding the inadequacy and unfairness of the investigation, and ultimately blamed AB for her circumstances, effectively worsening AB’s experience.
The HRTO also noted that, had the investigator followed the workplace violence and harassment policies and procedures, she may have conducted a proper, thorough investigation into the allegations.
This decision affirms that the right to equal treatment under the Code includes the employer’s obligation to conduct an investigation in response to discrimination and discriminatory harassment complaints, and that the failure to properly investigate a complaint may constitute discrimination, in breach of the Code.
The HRTO ordered the employer to pay nearly $60,000 in damages to AB as a result of this breach of the Code.
Takeaways
This decision underscores the importance for employers to fully implement and adhere to workplace anti-violence, anti-harassment, and anti-discrimination policies, including the reporting and investigation processes. In Ontario, in addition to the investigation requirements under the Code, the Occupational Health and Safety Act [OHSA] requires employers to maintain workplace violence and harassment policies and procedures, to take every reasonable precaution to protect employees from workplace harassment and violence, and to investigate complaints of workplace harassment and violence. Similar obligations exist in other Canadian jurisdictions.
As this HRTO decision demonstrates, failure by an employer to comply with its legislative investigation obligations can create significant liability for the employer.
To avoid liability under the Code for failing to respond properly to discrimination and harassment complaints, employers should ensure that they:
- implement comprehensive, updated policies on anti-discrimination, violence, and harassment (including sexual harassment) in the workplace, which lay out proper complaint reporting and investigation processes;
- communicate and provide adequate training on these policies and processes to all employees and managers;
- ensure that investigators appointed to conduct workplace investigations are qualified and trained to do so, and that they adhere to the relevant policies and procedures when investigating a complaint;
- respond to any internal complaint seriously, promptly, and sensitively; and
- reasonably investigate and act on all complaints.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.
