'Employers must ensure their policies and procedures for handling complaints are consistently applied to all employees'
“It's important for employers to ensure that investigations into employee misconduct are conducted promptly, fairly, and thoroughly within the scope of the specific allegations - taking prompt action on reported complaints is crucial to maintaining a healthy workplace culture and protecting the wellbeing of the people in the organization.”
So says employment lawyer and investigator Brooke Finkelstein of West Coast Workplace Law in Richmond, BC, after the British Columbia Human Rights Tribunal dismissed a worker’s claim that an investigation into workplace misconduct was discriminatory based on his sex.
The worker was a teacher for the Board of Education of School District No. 44 in North Vancouver, BC. In April 2019, the parents of a female student in the worker’s Grade 10 English class made a complaint to the school board about the worker’s “lack of professionalism, lack of instruction, and the content of his class discussions.” They accused the worker of sitting on a desk with his legs spread in a “manspreading” fashion, ignoring boundaries in approaching female students, and pressuring his students to participate in “uncomfortable and inappropriate classroom discussions.”
The allegations included comments that weren’t related to the curriculum and were about the role of women in society, abuse, abortion, miscarriages, public execution, and suicide.
The school board commenced an investigation on May 2 and informed the worker about the allegations. The worker went on sick leave about one week later.
While the worker was on leave, a Grade 12 female student contacted him on Facebook to ask him if he would review some short stories she had written. The worker agreed and provided feedback on the stories, some of which contained sexual content.
Independent investigator
Meanwhile, an independent investigator conducted the investigation and interviewed several witnesses. The witnesses revealed that the worker had engaged in an inappropriate relationship with the female student involving sexually explicit stories. The school board then amended its notice of investigation to the worker to add these additional allegations.
The investigator interviewed the worker twice when he returned from sick leave in January 2021, where he was given an opportunity to explain his version of events.
“The school board initiated an investigation promptly after receiving complaints from the parents, and conducted the investigation through a hired investigator,” says Finkelstein. “The investigation involved interviewing witnesses and providing the [worker] with opportunities to respond to the allegations - all of that is on par with what they should do in responding to complaints.”
Finkelstein also notes that the worker was interviewed twice, which is a sign of a fair and thorough investigation.
“A respondent can be interviewed multiple times, especially if additional information or allegations emerged from subsequent interviews, in order to ensure they have a full and fair opportunity to respond,” she says. “And then the investigator provided the written report to the school board in a reasonable time after conducting the interviews.”
Inappropriate conduct
On March 23, the investigator issued a written report concluding that the worker had sat with his legs spread apart on a desk but it wasn’t misconduct. However, the report stated that the worker’s communication with a student on Facebook while he was on medical leave was inappropriate – with a note that reviewing the student’s stories wasn’t inappropriate, but communicating with a student while on leave crossed teacher-student boundaries.
The report concluded that the worker displayed “a pattern of inappropriate, offensive, and unprofessional comments and questions” in his classes that constituted misconduct.
The school board shared the investigation report with the worker, who then provided medical information indicating that much of his inappropriate behaviour could be tied to a mental disability. The school board decided not to discipline the worker.
However, the worker filed a human rights complaint alleging that the school board discriminated against him in employment on the basis of sex. He claimed that the school board only investigated him for misconduct because he was male, noting that a female teacher who read the same short stories wasn’t investigated. He also pointed to the gender-specific term “manspreading” and argued that it was only misconduct for him to discuss issues relating to females because he was male.
The school board applied to have the worker’s complaint dismissed on the basis that his allegations had no reasonable prospect of success.
The tribunal noted that, in order to dismiss an application as having no reasonable prospect of success, there would have to be no evidence that would take the complaint out of the realm of conjecture. In order to prove his complaint at a hearing, the worker would have to satisfy the three-part test for prima facie discrimination – he had a protected characteristic under the BC Human Rights Code, he was adversely affected in his employment, and his protected characteristic was a factor in the adverse impact.
The board agreed that the worker’s sex was a characteristic protected by the code. However, the other two elements were harder to prove, said the tribunal.
Focus of investigation
The tribunal noted that there was no dispute that the worker communicated with a student while on sick leave. When the school board investigated, it was “in the context of investigating allegations that a teacher who was on leave had engaged in improper communications with a student.” Although the worker pointed out that a female teacher had also read the student’s stories, reading the stories wasn’t the focus of the investigation – the communication itself on a non-work platform was, the tribunal said, adding that there were no allegations that other teachers had violated student-teacher boundaries by communicating with a student outside of work while on leave.
The tribunal found that the school board would be reasonably certain to prove that its investigation was due to inappropriate communication with a student, not reading the stories or any other reason related to the fact that the worker was male.
The tribunal also found that the term “manspreading” wasn’t discriminatory in the school board’s investigation, as it wasn’t used as “a gender-based slur” but was in reference to the allegations from parents. As a result, there was no reasonable prospect that the worker would be able to show that the term used in the allegations was “so inherently inappropriate or offensive as to trigger the protection of the code,” said the tribunal.
As for the allegations of discussing inappropriate topics in class, the tribunal also found that the worker would be unable to show that the investigation was related to his sex. The allegations once again came from parents and students – with no allegations against any other teachers - and the school board was obligated to investigate under its code of conduct and student safety and welfare policy, the tribunal said.
In addition, the investigator’s written report determined that the worker’s behaviour was misconduct not because he discussed “issues about females,” but rather because it engaged in a pattern of inappropriate, offensive, and unprofessional comments that had little to do with the subject matter being taught, said the tribunal.
Policy applied consistently
“It was clear that the investigation’s focus was on the alleged inappropriate communication with the student on Facebook while he was on sick leave, and also the pattern of inappropriate offensive and unprofessional comments made during class,” says Finkelstein. “Also, the term ‘manspreading’ used during the investigation was deemed not inherently discriminatory as it was part of informing the worker about specific student complaints - it's important to put the specific particulars of the allegations to the worker so they have a chance to respond to exactly what that complaint is.”
Ultimately, the tribunal found that the worker disagreed with the investigator’s findings but there was no reasonable prospect that the worker could show that his sex was a factor in the alleged adverse treatment. The worker’s complaint was dismissed.
“The school board's obligation to investigate allegations of misconduct under its policies applied to all teachers, regardless of sex or any other identity factor,” says Finkelstein. “Employers must ensure that their policies and procedures for handling complaints and investigations are consistently applied to all employees to avoid allegations of discriminatory treatment - employers have a legal obligation to address and prevent workplace misconduct, so they must conduct fair and thorough investigations, which can often benefit from the expertise of an impartial investigator.”
See Stibbards v. Board of Education of School District No. 44 (North Vancouver), 2024 BCHRT 174.
