Canadian Employment Law Today - sample

Sexually harassed CRA worker gets $60,000+ Federal agency's response to sexual harassment immediate, but then slowed to a crawl; onus put on victim to help with solution BY JEFFREY R. SMITH A quick response to a harassment complaint is important and laudable for an employer. How- ever, if that response doesn't actually address the harassment or protect the victim, it can be a big problem. e 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 experience ha- rassment, discrimination, and stress after her complaint. Marilyn Doro was an appeals officer with the CRA in Hamilton, Ont. e of- fice where she worked consisted of mostly female employees with only a handful of males, including her supervisor. e supervisor became the team leader in Doro's section in January 2010. A few months later in May, he started giving Doro unwanted attention at her desk nearly every day. A couple of times, the su- pervisor touched her while she sat at her desk, including a back rub that a co-work- er 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 — which embarrassed her in front of her colleagues — 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 often trapped by the supervisor's behaviour, but in Oc- tober 2010 she finally reported it to the CRA with a written complaint. e chief of the CRA's appeals division in Toronto West — who was the harasser's manager — confirmed receipt of her complaint and discussed it with her. However, after the complaint, the supervisor continued to work in close proximity to Doro, watching her from his desk with his office door open as she walked past to her cubicle. Doro took several days of sick leave after filing the complaint. e appeals division chief provided some options to create physical separa- tion between Doro and her harasser, in- cluding moving to the St. Catharines, Ont., office with compensation for her extra mileage and a travel lunch allow- ance. Other options presented included 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. e CRA also noted that the supervisor had agreed to take Mondays off instead of his preferred Friday for the CRA's com- pressed workweek —Doro took Fridays off — so they would both be in the office only three days per week. Initial solution still exposed worker to harassment e CRA identified a new team leader for Doro's group, but it wouldn't be effective until two weeks after the complaint —Oct. 18. e CRA believed Doro agreed to have her desk moved to the SRED area informed Doro and her harasser of the move and ad- vised they were prohibited from commu- nicating with each other. However, when Doro returned from her sick leave she was surprised and unhappy this had happened — the location was still near her harasser and he could still watch her come and go to her cubicle from his desk. In fact, Doro said her harasser continued to watch her and would "leer" at her as she walked through a hallway that was the only way 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 had rejected the other choices, the harasser had denied the accusations, and it was a "nightmare" to change a team leader. e appeals division chief told the ha- rasser to shut his office door and stop leer- ing at Doro, but it turned into an agree- ment 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 to stare down the hall- way, but the harasser resisted. As a result, the harasser continued to sit in his office and stare at Doro until — after repeated requests from Doro — the division chief moved her farther away from the harasser. e CRA hired an independent inves- tigator to look into the harassment and interview various employees. e pro- cess involved a search for the investigator, interviews with several employees, a re- sponse period for everyone interviewed, writing of draft reports, time for rebuttal comments, and a months-long screening of the final draft report. is took a total of two years and the final report was sub- mitted on Oct. 18, 2012. It concluded that the supervisor was guilty of 13 different incidents of harassment against Doro, contrary to the CRA's anti-harassment policy. e supervisor was suspended for six days without pay. Doro filed a human rights complaint alleging that CRA's handling of the after- math of the sexual harassment — effec- tively consenting to additional harassment after the complaint — was discrimination under both the Canadian Human Rights Act and the collective agreement. Employer's response prompt, but inadequate e 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 starting a process for a new team leader, but it lagged in actually "providing a safe level of physical separa- tion" from him. e agency put the onus on Doro to reach a solution instead of confronting her alleged harasser and pos- sibly putting him on administrative leave pending an outcome of the investigation or moving his office away from Doro. In fact, the board found it "appalling that (the di- vision chief ) had the temerity to pressure Ms. Doro to move her workplace to a dif- ferent city but felt it inappropriate to even ask the harasser to move his office to a dif- ferent floor of the same building." e bur- 4 Canadian HR Reporter, a Thomson Reuters business 2019 CASE IN POINT: SEXUAL HARASSMENT SEXUAL HARASSMENT is a scourge on the workplace and employers would be wise to do their best to prevent it and deal with it when it happens. This includes acting promptly in response to a complaint, but that's not the whole story. Acting promptly is important, but the substance of the measures taken is essential, if not more important. BACKGROUND

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