Employee dealt with ongoing harassment after supervisor got slap on the wrist
An Ontario municipality has been ordered to pay more than $25,000 for failing to properly handle an employee’s sexual harassment complaint.
The employee, who was referred to as AB for privacy purposes, was an inspector for the Hamilton Street Railway (HSR), a public transit service in Hamilton, with 23 years of service. Her duties included communicating with transit operators in the field to ensure efficient operation of the service. AB was the only female inspector with the HSR.
She was concerned about proving herself and cracking what she believed was a tight-knit group of male inspectors. However, she soon ran into difficulty. Not long after she became an inspector, AB was contacted by a supervisor to ask how things were going. The supervisor also asked what she was wearing, and when she replied "my uniform," he asked her what she was wearing underneath it. AB hung up and the supervisor didn’t make any further inappropriate comments to her.
Vulgar emails began campaign of harassment
In December 2006, AB began receiving emails from her supervisor that she considered pornographic. She was shocked by their content, but didn’t raise the issue with him initially because she thought she received them by mistake. But, in early 2007, she received more pornographic emails and told the supervisor she didn’t appreciate them. The emails stopped for awhile but resumed in July 2007.
Over the next few months, AB received what she called a "barrage" of obscene emails from her supervisor. She told him she would file a formal complaint if the emails continued and the supervisor chuckled. But the emails stopped.
In early 2008, the supervisor stepped up behind AB while she was seated at radio control and massaged her shoulders. AB pulled away and asked him not to touch her. Another inspector was there and witnessed the incident.
In April 2008, AB sent her supervisor two emails relating to the shift schedule and the supervisor responded with emails containing profanity.
Also in 2008, HSR employees received new hats as part of their uniforms. One day, AB was working with two other inspectors when the supervisor asked her where her hat was. AB replied that it was at home, and the supervisor suggested she and her financée must have found a use for it in the bedroom. He then imitated AB having sex. AB asked him to stop multiple times, but he didn’t — only stopping when AB splashed water on him.
On one occasion in early 2009, the supervisor tried to massage AB’s shoulders in the lunchroom. AB pulled away, knocking over items on a table, and told him to leave her alone. On another day, the supervisor tried to massage AB’s shoulder’s while she was working and she kicked out her leg behind her, hitting the supervisor in the groin. Another employee who was present told the supervisor "You deserved that. She asked you to leave her alone. Why don’t you listen to her?"
Not long after AB became an inspector, a co-worker entered the control room and called out "Lucy, I’m home." AB — who had red hair — considered the reference to redheaded actor Lucille Ball an insult and told the co-worker not to call her that. The co-worker stopped, but the same supervisor began calling her "Lucy," including in emails, despite AB’s requests for him to stop.
In late summer 2010, AB told her supervisor she might have nerve damage affecting her hands and she might need time off for surgery. The supervisor told her sick benefits would cover the time off, but later in front of other employees he said: "We all know why your hands are sore. You haven’t had a man over in a year, so you’ve had to look after yourself."
The supervisor then made a gesture simulating masturbation. AB was embarrassed and fled to the washroom.
On Sept. 24, 2010, AB was working dispatch with another inspector. The supervisor called in, with the other inspector answering and putting it on speaker so he could continue to work. The supervisor gave him instructions and then said: "Tell that Irish skank behind you the same thing."
AB confronted the supervisor and told him someone needed to talk to HR about his way of inappropriately expressing himself. The supervisor replied that it "works both ways." AB felt this was a threat of reprisal if she complained to HR. The supervisor repeated the remark to her before walking away.
Initial complaint went nowhere
This incident was the last straw for AB, so she spoke to the transit supervisor, who agreed the supervisor was being demeaning and disrespectful and the HSR had been subject to claims of a poisoned work environment for women.
He assured AB the supervisor had been spoken to previously about his conduct and directed her to the transit manager.
The transit director was on vacation for a week. When he came back, AB learned he had not mentioned her complaint. However, he said he had already spoken to the supervisor about the way he interacted with employees and, as a long-term employee, the supervisor’s behaviour was the result of ignorance rather than ill intent.
AB eventually met with the HSR’s human rights specialist, who told AB the emails alone were sufficient to terminate the supervisor. AB said she didn’t want anyone to get fired, but wanted the supervisor to be moved or disciplined so he would stop harassing her. On Nov. 30, 2010, AB filed a formal complaint against the supervisor.
AB provided a written account of the speakerphone and hat incidents and the HSR conducted an audit of the supervisor’s email contacts with AB. The supervisor admitted to the "skank" comment, sending offensive emails and calling her "Lucy." He denied making the comment and gestures related to her hat.
The HSR didn’t interview any witnesses because the supervisor admitted to violating the harassment policy. It was decided to discipline the supervisor with harassment training and a disciplinary letter admonishing him to maintain "a respectful and supportive workplace," though AB denied being told the supervisor would be disciplined.
In January 2011, AB contacted HR to enquire about the results of the investigation, as she was concerned about her own protection in the workplace. She was told the matter was considered resolved, but wasn’t given details about the discipline. Since the supervisor was still in her department and bragged that he hadn’t taken the human rights course, AB felt no discipline had been given to him. This belief was solidified when the supervisor leaned over her shoulder a few days later and put his hand on her back. AB immediately told the transit manager, who spoke to the supervisor.
Shortly thereafter, AB filed a grievance complaining of harassment and the HSR’s failure to provide a harassment-free workplace. Later, she also filed a complaint with the Ontario Human Rights Commission. The supervisor continued to work in her department, so she switched shifts to avoid him, though their shifts still overlapped for an hour. The stress of the situation affected her health and home life, and she missed some shifts that led to her placement on an attendance management program.
After some negotiations, AB and the HSR agreed to include the human rights complaint in the grievance procedure. In January 2012, AB produced 38 pornographic emails she claimed the supervisor had sent, which the supervisor denied sending. A forensic audit was completed in May 2012, in which the auditor concluded the emails were fabricated or altered. The union hired its own computer forensics expert, who then determined the emails were authentic.
The city took the second audit as definitive and terminated the supervisor’s employment for lying about the emails, providing him with 18 months’ salary.
The arbitrator noted that harassment was defined in the Ontario Human Rights Code as "a course of vexatious comment or conduct" that the perpetrator ought to reasonably know is unwelcome and "the employer is ultimately liable for discrimination in employment arising from the acts of its employees."
The arbitrator found the supervisor’s conduct against AB — and a history of previous conduct known to the HSR — both sexualized and not, was based on the fact AB was a woman. AB made it clear to the supervisor his behaviour was unwanted and therefore it met the definition of sexual harassment. This behaviour — and the humiliation AB felt as a result of it — created "an oppressive situation" and a poisoned work environment, said the arbitrator.
The arbitrator found the supervisor’s comment "it works both ways" in response to AB’s statement she would file a formal complaint was hearsay and did not find it was a threat of reprisal, but an instance AB brought forward regarding the denial of an overtime shift by the supervisor following the filing of the grievance constituted a reprisal.
The arbitrator also found the supervisor was part of the "directing mind" of the HSR, and as a result it could be considered the conduct of the city as AB’s employer, making the city "ultimately responsible" for the workplace harassment. In addition, the city didn’t follow the procedure in its own harassment policy by not properly investigating AB’s complaint and not adequately disciplining the supervisor. Also, AB wasn’t kept appraised of the status of the investigation and, from her perspective, there was no discipline at all. This led to a continuance of the supervisor working with AB and the poisoned work environment, which in turn led to a deterioration in AB’s emotional and mental state.
"It is reasonable to conclude that the damage to AB’s dignity, feelings and self-respect was only exacerbated by the city’s half-hearted and insensitive response (to her complaints)," said the arbitrator.
The city was ordered to pay AB $25,000 for violating her right to be free from discrimination in her workplace and injury to dignity, feelings and self-respect. In addition, it was required to compensate her for any sick days for which she wasn’t paid that were linked to her poisoned work environment, and remove those absences from her attendance management plan.
In addition, the city was ordered to evaluate its human rights training program and provide discrimination and harassment training to inspectors, supervisors and managers of the HSR. See City of Hamilton and Amalgamated Transit Union, Local 107 (Sept. 18, 2013), K. Waddington — Arb. (Ont. Lab. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today.
