Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2019 News |Canadian Safety Reporter Sexually harassed worker gets $60,000+ Federal agency's response to sexual harassment was immediate, but then slowed to a crawl; onus put on victim to help with solution BY JEFFREY R. SMITH A QUICK response to a harass- ment complaint is important and laudable for an employer. Howev- er, if that response doesn't actually address the harassment or protect the victim, it can be a big problem. The Canada Revenue Agency (CRA) learned this the hard way when it was ordered to pay more than $60,000 to a harassed em- ployee who continued to experi- ence harassment, discrimination, and stress after her complaint. Marilyn Doro was an appeals officer with the Canada Revenue Agency in Hamilton, Ont. Her supervisor became the team leader in Doro's section in Janu- ary 2010. A few months later in May, he started giving Doro unwanted attention at her desk nearly every day. A couple of times, the supervisor touched her while she sat at her desk, including a back rub that a co- worker witnessed. In addition, the supervisor gave Doro two compact discs containing love songs and told her to only listen to them at home. He frequently invited her to coffee or lunch, offered her rides home, sent her chocolate through the office mail, offered to help her with her home chores, texted her in the evening and on weekends, made comments to her that suggested he was watching her house, and sent sexually-themed emails to her personal email account. Doro felt intimidated and trapped by the supervisor's be- haviour and in October 2010 she finally reported it to the CRA. The chief of the CRA's appeals division in Toronto West — who was the harasser's manager — discussed the complaint with her. However, afterwards the supervisor continued to work in close proximity to Doro, watch- ing her from his desk with his of- fice door open as she walked past to her cubicle. Doro took several days of sick leave after filing the complaint. The appeals division chief provided some options to cre- ate physical separation between Doro and her harasser, includ- ing moving to the St. Catharines, Ont., office with compensation for her extra mileage and a travel allowance. Other options includ- ed moving to another position in the same building, moving her desk several metres away to an area on the same floor known as the SRED area, or telework from home. The CRA also noted that the supervisor had agreed to take Mondays off instead of his preferred Friday for the CRA's compressed workweek — Doro took Fridays off — so they would both be in the office only three days per week. Harassment ongoing The CRA identified a new team leader for Doro's group, but it wouldn't be effective until two weeks after the complaint — Oct. 18. The CRA believed Doro agreed to have her desk moved to the SRED area and advised her she was prohibited from communicating with the harasser. However, when Doro returned from her sick leave she surprised and unhappy about the move — her desk was still near her harasser and he could still watch her come and go from his office. In fact, Doro said her harasser continued to watch her and would "leer" at her as she walked through a hallway to her work area. She disputed that she had agreed to the move, but the division chief felt it was the only option as Doro rejected the other choices and it was a "night- mare" to change a team leader. The appeals division chief told the harasser to shut his office door and stop leering at Doro, but it turned into an agreement that the door would be shut 80 per cent of the time. He also told the harasser to move his desk and chair so he couldn't look out the door, but the harasser resisted. As a result, the harasser contin- ued to sit in his office and stare at Doro until — after repeated re- quests from Doro — the division chief moved her farther away. The CRA hired an indepen- dent investigator to look into the harassment and interview various employees. The process took a total of two years and the final report was submitted on Oct. 18, 2012. It concluded that the supervisor was guilty of 13 different incidents of ha- rassment against Doro contrary to the CRA's anti-harassment policy. The supervisor was sus- pended for six days without pay. Doro filed a human rights complaint, alleging that CRA's handling of the aftermath of the sexual harassment — effectively consenting to additional harass- ment — was discrimination un- der both the Canadian Human Rights Act and the collective agreement. Employer's response prompt, but inadequate The board found that the CRA acted promptly to acknowledge and initially investigate Doro's complaint, as well as provide "organizational separation" from her harasser by finding a new team leader, but it lagged in actually "providing a safe level of physical separation" from her harasser. The agency put the onus on Doro to reach a solution instead of confront- ing her alleged harasser, possibly putting him on administrative leave pending an outcome of the investigation, or moving his of- fice away from Doro. In fact, the board found it "appalling that (the division chief ) had the te- merity to pressure Ms. Doro to move her workplace to a differ- ent city but felt it inappropriate to even ask the harasser to move his office to a different floor of the same building." The burden should be on the CRA to cre- ate a safe and harassment-free workplace, not on the victim of harassment, said the board. As a result, the CRA failed to properly address the sexual ha- rassment by not implementing a satisfactory solution, leaving Doro exposed to more harass- ment. This amounted to consent of the continuing harassment and a failure to take adequate steps to prevent it, said the board. "Ms. Doro testified as to the terrible stress and fear this ar- rangement caused her as she had reported the harassment, spent a brief period home ill due to stress, and then returned to work to find her workstation moved under the new arrangement that had been dictated by (the divi- sion chief )," said the board. The board noted that the CRA had policies and a respectful workplace campaign, but there was no evidence Doro's harasser received any harassment pre- vention material or attended any workshops. Given the harm caused to Doro by her supervi- sor, the board suggested both the CRA and the union put more ef- fort into sexual harassment pre- vention and dissemination of in- formation of the consequences of harassment before it happens. On top of the CRA's failure to properly address the harassment and its aftermath, the board found the length of time it took for the independent investiga- tor to reach a conclusion was too long — during the two-year process, Doro had to endure uncertainty and the additional harassment, exacerbating her stress and causing her to take ad- ditional sick leave. The CRA was ordered to pay Doro $20,000 in damages for pain and suffering stem- ming from the discrimination to which it subjected her and $20,000 in special damages for "the reckless manner in which it handled the initial investigation of her complaint that resulted in her being left in the immedi- ate proximity of her harasser and that allowed him to continue harassing her." In addition, the agency had to fork over another $22,995 in out-of-pocket ex- penses Doro claimed she spent on trauma counselling and other treatment for the anxiety and de- pression she suffered as a result of the harassment. See Doro v. Canada Revenue Agency, 2019 CarswellNat 691 (Fed. Pub. Sec- tor Lab. Rel. & Emp. Bd.).

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