The benefit of the doubt

When it comes to harassment complaints, never give an employee the brush-off — no matter how incredible the claim may be

By Jeffrey R. Smith

When it comes to harassment complaints by employees, there’s an important thing employers should keep in mind: Even if it seems ridiculous or the complaining employee lacks credibility, the complaint should be taken seriously. If not, an employer could find itself in trouble even if the complaint has no merit.

An Ontario accounting firm found this out when a bookkeeping contractor filed a complaint of sexual harassment that happened on a company retreat a month earlier. The contractor, who was considered an employee by the Ontario Human Rights Tribunal because she had an office at the firm’s headquarters and was listed as on its staff, went on the retreat in North Carolina in May 2008. After a night of drinking, she ended up in a hot tub with a male principal of the firm, a male client of the firm and a female intern. She admitted things got hot and heavy with the client, but they soon thought better of it as both were married.

However, when she got back home to Toronto, she confessed what happened to her husband. As she talked about it, she seemed to call up more memories of what happened and decided both men present had gone too far without her permission and she had been drugged. She made a complaint to the firm, but her story had a lot of inconsistencies, others who were there said nothing happened that wasn’t consensual and there was little reason to believe she was drugged.

She had also been in contact with the client after the retreat and had acted friendly and flirty, so she wasn’t taken very seriously when she later made the complaint. She also made other wild accusations — that she was videotaped, for example — that she later didn’t pursue. Her husband also got involved and behaved like a “loose cannon,” calling various people at the firm about the situation.

The human rights tribunal agreed there was little evidence to show sexual assault, harassment or drugging had happened on the retreat and the woman wasn’t very credible. However, the tribunal found the firm had a duty to investigate her complaint under the Ontario Human Rights Code and it breached the code by not doing so. The firm also lacked an official written policy on how it handled harassment complaints so the tribunal ordered it to fix the management team’s “complete lack of knowledge about their obligations under the code.”

So if an employee complains about serious misconduct that could constitute harassment, it doesn’t matter how believable the complaint is. Even if it’s obvious the complaint will amount to nothing, an employer who doesn’t take it seriously could still be breaching the employee’s human rights. It might seem like nothing to some, but it might be important to the person making the complaint.

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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