Canadian Employment Law Today

Canadian HR Reporter, 2020 Costa said "this is how women act when they're on their rags." Neither female of- ficer responded to him. Mental health issues and medical leave McWilliam went on medical leave in January 2014, receiving workers' compensation bene- fits. She was also diagnosed with PTSD. While on leave, the TPS insisted that she received a medical assessment at the medical advisory services office in TPS headquarters. McWil - liam didn't want to go to headquarters as she felt it was a poisoned work environment and her medical restrictions advised against at- tending locations where she might encounter police officers, so she asked for it to be per- formed off-site. TPS refused and her superiors ultimately warned her that if she didn't come to headquarters for the assessment she would be marked as absent without leave. McWilliam filed a human rights complaint against the TPS and Costa as an individual, alleging that she was subjected to sexual ha - rassment, a poisoned work environment and reprisals because of her sex. She also claimed discrimination because of disability when the TPS failed to properly accommodate her PTSD by requiring her to come to headquar - ters for the medical assessment. Costa, the staff sergeants and other police officers denied that many of the incidents happened and claimed any comments were jokes and not meant to make McWilliam feel uncomfortable as a woman. However, for multiple reasons including consisten - cy, motivation and the nature of their ac- counts, the Ontario Human Rights Tribu- nal found them to be less than convincing while McWilliam was credible. As a result, the tribunal determined that all of the in- cidents above happened largely as McWil- liam claimed. The tribunal noted that, in some of the circumstances, the intention was not to sexu- ally harass or harm McWilliam. However, it was well established in law that harassment or harm can happen regardless of intention. The tribunal also referred to four condi- tions necessary to establish sexual harass- ment in employment — the offending party must be her employer or another employee of the employer, the conduct in question was vexatious or ought to be known to be unwel- come, the conduct must occur in the broadly defined workplace and it must be related to McWilliam's sex. As far as Costa's conduct, the first condi- tion was easily met since, as a sergeant, Costa was McWilliam's work supervisor. The tribu- nal also found that the forced kiss and the other comments by Costa would be expected by a reasonable person to be unwelcome and, therefore, met the second condition. The comments took place at work and the occa - sion where the forced kiss took place was a gathering of work colleagues and supervisor, so this fell within the scope of the workplace, said the tribunal. Finally, it was unlikely that Costa would force a kiss or make the same sexualized comments to a man, so his behav - iour occurred because of McWilliam's sex, the tribunal added. Poisoned work environment The tribunal also found that the TPS was responsible for creating and fostering a poi- soned work environment. Most of the com- ments and conduct were made or carried out by McWilliam's supervisors — staff ser- geants and a sergeant — who had "a signifi- cant degree of power over [McWilliam] and her career prospects" and to whom she was supposed to report harassment incidents. In addition, they represented a pattern of be- haviour that was vexatious and unwanted, forcing McWilliam to adapt "various coping practices such as deflecting the comments or playing along for fear of suffering con- sequences due to the degree of power her sergeants and staff sergeants held over her," said the tribunal. However, the tribunal didn't find evidence of any reprisals that McWilliams claimed happened when she was denied certain as - signments. The evidence indicated that she received several opportunities following her complaints and one in particular she didn't get because it required a "one-for-one" ex- change with the other department that wasn't feasible. As for McWilliam's claim of discrimination regarding the required location for the medi- cal assessment, the tribunal agreed. McWil- liam's PTSD was a disability under the On- tario Human Rights Code and she suffered adverse treatment when she was ordered to have her medical assessment performed at police headquarters, despite medical restric- tions indicating that doing so could exacer- bate her condition. "Forcing her to attend at [headquarters] despite these restrictions is about as close to the essence of discrimination as one can get," said the tribunal, adding that the TPS didn't indicate there would be any undue hardship or even "a major inconvenience" for a doctor to accommodate McWilliam to complete an off-site assessment. The tribunal determined that the sexual harassment, poisoned work environment and disability discrimination were "signifi - cant factors contributing to [McWilliam's] PTSD and related mental health conditions. The TPS board was ordered to pay McWilliam $75,000 in damages for injury to dignity, feelings and self-respect for its conduct and was jointly and severally liability with Costa for another $10,000 for his conduct. The TPS was also ordered to develop a human rights strategy and associated training for all police officers. The tribunal denied McWilliam's claim for lost wages because she received workers' compensation benefits for her medical leave starting in January 2014. For more information, see: • McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (Ont. Human Rights Trib.). December 2, 2020 | Canadian Employment Law Today CREDIT: MOTORTION iSTOCK It is well established in law that harassment or harm can happen regardless of intention. ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com or visit www.employmentlawtoday.com for more information.

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