Harassment claim must meet objective test

This article was originally published by The Hamilton Spectator.

Bernice got a temporary job with a staffing agency working in their offices. She knew she was hired on a temporary basis until a competition for a full-time person in the position had been completed. She did not apply for that full-time position.

One week after she was told a full-time replacement had been found and she would soon be given an end date for her contract, Bernice accused her boss of sexually harassing her. Her boss immediately took the complaint to human resources and a meeting was arranged. At that meeting it was agreed Bernice would not work with that boss before the end of her contract. She said she was satisfied with that arrangement. She finished the contract a few weeks later.

Bernice then filed a human rights complaint alleging sexual harassment against her boss. She said he invited her to follow him on Twitter, followed her in a park, hung around her desk and engaged in inappropriate conversations with another employee, rushed up behind her and followed her and deliberately bumped into her near the copy room. She said the boss admitted to his discriminatory conduct and apologized when he was confronted.

Bernice also alleged the boss had said hello to her in an overtly sexualized manner on more than one occasion. She said he would look her up and down as he said hello. Two fellow employees testified that they never saw the boss greet anyone in an inappropriate manner and the boss denied the behaviour categorically. The boss said he never socialized with Bernice. It was an open-concept office and the adjudicator believed that if this was a regular occurrence somebody would have witnessed it. Bernice said one day when she was working in the copy room she felt somebody pressing against her back and turned around to see her boss smirking. She said he asked if he annoyed her and she said yes. The first time anyone heard about this alleged incident was a week after Bernice was told her job was coming to an end and the boss completely denied it, noting that the photocopy room had a big window anyone could see through. When she first reported it, Bernice said she had felt somebody brush up against her, not press up against her. Later, she said the boss pressed his body against hers in such a way that she felt his body all over her back, bottom and back torso. The adjudicator did not believe Bernice.

When it got to a hearing, Bernice stopped relying on the invitation to follow the boss on Twitter as part of her sexual harassment complaint.

Bernice claimed that one day in the coffee room the boss was there and pointed out the window at a local park to say it was a nice place to walk. She concluded that he had been following her on her lunchtime walks in that park. One can’t see the park from the coffee room window. This allegation was made for the first time by Bernice at the actual hearing and was not part of her written complaint. Bernice was not believed.

For the first time, at the hearing, Bernice alleged that the boss hung around her work cubicle one day talking to another colleague about another woman’s weight. The boss said he had only been in Bernice’s cubicle twice to give her work assignments. Bernice said she complained about this conversation to two colleagues but they gave evidence that they had never heard about it.

Bernice said one day when she was walking through the parking lot to the office the boss rushed up behind her. This made her uncomfortable so she made sure he walked ahead and got in the elevator before she took the stairs. She said on another day when she saw the boss waiting for the elevator she took the stairs to avoid him.

The boss remembered her letting him through the door first and he went ahead. He remembered that she did not follow and he thought that was odd. He testified that he hardly ever took the elevator. They only worked on the second floor. He only remembers taking the elevator during this period twice.

The boss sounded more credible than Bernice and he was believed.

Bernice said the boss intentionally bumped into her as she was coming out of the coffee room. All the boss remembered was an accidental meeting where he may have reached out his hand to touch her shoulder and said something like “oops” or “sorry.” Ultimately, there was no evidence this incident was intentional or sexualized.

Bernice said when she finally confronted the boss with this sexual harassment he did not deny her accusation and apologized saying he didn’t know why it would happen and it had never happened before. The boss said all he did was generically apologize if anything he had done had made her uncomfortable.

The adjudicator decided that the numerous allegations of sexual harassment appeared to be mostly based on Bernice’s interpretation of innocuous actions. Ultimately, the adjudicator decided that even if most of the allegations were believed, the behaviour did not objectively constitute sexual harassment. To the adjudicator, Bernice’s perceptions were tainted.

Whether the boss got away with something here or Bernice’s perceptions were not reliable, the point is there is an objective test for what constitutes harassment, including sexual harassment. One is reminded of the saying “just because you are offended, does not mean you are right.”

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Ed Canning
Ed Canning
P: 905.572.5809