• Another Workplace Investigation Found Lacking: Lessons Learned from the "Sex Note" Case
  • December 6, 2010 | Author: Rebecca Saturley
  • Law Firm: Stewart McKelvey - Halifax Office
  • Dionne Newton, an employee with the City of Toronto, complained to her direct supervisor about a widespread problem of sexual harassment that included jokes, inappropriate letters, and touching in her workplace.  Despite the fact that her complaint was addressed by her direct supervisor, her manager, the city’s human resources department and the city’s human rights office (who generated a 72-page investigation report), Newton filed a complaint with the Ontario Human Rights Commission.  The Ontario Human Rights Tribunal concluded that the initial stages of the investigation were deficient for a number of reasons, including, the failure to get adequate detail, to move things along quickly, and to make appropriate recommendations and resolve the complaint.  However, the tribunal concluded that the investigation and subsequent report by the human rights office were thorough and of a high quality.  The recommendations in the report were substantially adopted. Notwithstanding the positive outcome, the City of Toronto was found liable for damages in part due to the early problems in the investigative procedure.

    The Sexually Poisoned Work Environment

    In Newton v. Toronto (City), Newton filed a complaint with the Ontario Human Rights Commission alleging a sexually poisoned work environment when she worked in the taxi training unit for the City of Toronto.  She claimed that she reported her concerns to management in August 2005 but that management had failed to take appropriate steps to respond to her concerns.  Finally, Newton alleged that she had been retaliated against because of her complaint.

    Newton’s initial complaint to her direct supervisor was prompted by a note left on her workstation that read “I want to have sex with you”.  This note followed a number of inappropriate sexual comments, jokes and innuendos that were regularly heard in the workplace.  As well, there were also evidence of touching - ranging from tickling to grabbing.

    The Ontario Human Rights Tribunal had no hesitation in concluding that Newton was subjected to a sexually poisoned work environment.  Of interest, the tribunal heard no evidence on the workplace environment, but relied upon the comments made by the investigator from the human rights office in her report.

    This article focuses on the various steps of the investigative process.  In determining whether the response at each step was reasonable and adequate, the tribunal considered the following test from Laskowska v. Marineland of Canada Inc.:

    (1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy?  Was there a proper complaint mechanism in place?  Was adequate training given to management and employees;

    (2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action:  Once an internal complaint was made, did the employer treat it seriously?  Did it deal with the matter promptly and sensitively?  Did it reasonably investigate and act; and

    (3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication:  Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment?  Did it communicate its findings and actions to the complainant?

    Step One:  The Response of the Coordinator

    On August 28, 2005, Newton reported her concerns about the note to the coordinator of taxi training.  She discussed those concerns in more detail on August 29, 2005 and also made some general comments about sexual comments in the workplace.  The coordinator advised her that he would keep the matter confidential and that he would speak to the manager about this issue.

    Newton provided the name of another female co-worker that had concerns.  The coordinator did not follow up with this individual or mention this to the manager.  On August 30, 2005, when Newton came to work, she asked the coordinator if he had notified the manager.  He had not and she advised him that she would speak to the manager herself.

    The tribunal concluded that the coordinator was generally aware that sexual comments were being made in the workplace.  The tribunal referred to the report which concluded that the coordinator had made mistakes:

    • He was not “proactive in eliciting specific details”.

    • He did not follow up with other female employees identified by Newton.

    • He did not leave a message for the manager to immediately alert him that there was a serious workplace issue.

    However, he did speak to Newton immediately, discussed appropriate remedies, allowed her to leave early when she was upset and agreed to meet with the manager to move Newton’s complaint forward.  Thus, the tribunal noted that the coordinator did not fail in his obligation to respond appropriately to Newton’s concerns.

    Step Two: The Response of the Manager

    On August 30, 2005, Newton informed her manager about the note and her concerns.  The manager had been previously aware of the sexual comments and innuendo that took place in the office.  The manager took Newton’s concerns seriously and addressed them in a timely manner; however, the human rights tribunal found that the manager made a number of errors, including:

    • Failure to follow up on the sexual note to try to identify the author or to communicate to the rest of the staff that such behaviour constituted harassment.

    • Confidentiality was not respected by discussing the name of the second male co-worker in front of the first, by confirming who had complained after agreeing to maintain confidentiality, and by allowing other staff to vent about Newton without addressing confidentiality issues.

    • Failure to elicit specific details regarding Newton’s concerns about “sexual conversations” meant the complaint could not be fully assessed and addressed.

    • The manner in which he communicated with Newton led her to feel blamed for some of the inappropriate behaviour.

    • There was no follow-up discussion with the office as a whole about appropriate office behaviour.

    Step Three:  The Response of the Human Resources Department

    In response to what was termed a “labour relations issue” raised by the manager, two individuals from the city’s human resources department met with eleven employees at the office where Newton worked.  The questions asked only related to the general office environment, and no questions were asked relating to any specific incidents or allegations raised by Newton - in fact, Newton was not interviewed. 

    The human resources department concluded that the office seemed like it was a workplace where the employees did not think there was any issue.  Nonetheless, the two human resources representatives attended a meeting with the manager about a week later to discuss the results of the interviews and the potential for sensitivity-type training.  Nothing specific was arranged.

    The tribunal concluded that the human resources intervention did not fulfil the obligation to “reasonably investigate and act”. In particular the department failed to ask questions related to Newton’s specific allegations and failed to interview Newton as part of the process, yet, concluded that there were no issues in this workplace. 

    The tribunal concluded:

    In my view, this intervention falls far short of the kind of response required to satisfy the obligation to take reasonable steps in response to an allegation of a Code violation, and supports a further basis upon which I find the City to be liable under the Code.

    Step Four:  The Response of the Human Rights Office

    Newton was not satisfied with the initial response to her concern and filed a formal complaint with the city’s human rights office.  As indicated, her complaint was investigated by a senior human rights consultant for the city who substantiated many (but not all) of Newton’s allegations.  Additionally, the consultant made recommendations for remedial action which were largely accepted and acted upon by management.  Nevertheless, Newton was also unhappy with the investigation conducted by the human rights office.  She had two concerns: the drafting of the complaint and the timeliness of the investigation.

    The human rights office deleted and altered statements from Newton’s complaint.  The consultant who conducted the investigation was focussed on alleged policy and Code violations whereas Newton wanted the complaint to include more factual and contextual narrative.  The tribunal concluded that both perspectives were valid and given the ultimate conclusion by the human rights office, no violation of the Code arose from this difference in perspective.

    The second concern raised by Newton was the length of time it took to complete this investigation - the process took about five and a half months from the completion of the formal complaint to the completion of the final investigation report (a 72-page single-spaced document).  The tribunal concluded that this was not an unreasonable length of time to complete an investigation of this nature given the number of respondents and witnesses and the scope of the allegations.  The Tribunal also noted that the investigation was “exceedingly thorough” and the report “comprehensive and detailed”. 

    The tribunal concluded that that the investigation conducted by the human rights office and the city’s response to the recommendations fulfilled the city’s duty to take reasonable and adequate steps in response to the Newton’s complaint.

    The Outcome

    Newton was awarded damages for lost wages resulting from an absence due to stress relating to this matter and $15,000 in monetary compensation for injury to dignity, feelings and self-respect.  The award was in part due to the existence of a sexually poisoned workplace, but the tribunal concluded:

    I further find that the impact on [Newton] was exacerbated by the reprisal that she experienced in the workplace and by management’s initial failure to take adequate steps to respond to her concerns.

    What This Means to You

    Internal workplace investigations can minimize liability in two ways:

    1. Complainants who feel that their concerns are being taken seriously may be less likely to commence legal action, particularly if their complaint is investigated and quickly and thoroughly addressed.

    2. A good investigation may resolve or eliminate potential problems early.

    However, an inadequate investigation can do more harm than good.  While the City of Toronto eventually conducted a thorough investigation that did assist in minimizing potential liability, the early actions were found to be lacking.  The best way to ensure that workplace investigations are done right is to have a clear workplace policy defining:

    • what happens when a significant workplace incident is reported,
    • when an incident should be escalated,
    • who is responsible for the investigation,
    • key steps in the investigative process. 

    If such incidents, particularly those involving widespread sexual harassment, can immediately be referred to an individual within the company or an external investigator with expertise in these matters, the concerns expressed by the Ontario Human Rights Tribunal in the early stages of the City of Toronto investigation can be avoided.