How a Faulty Workplace Investigation Can Violate the Human Rights Code

The Facts

Most employers know that a defective workplace investigation can be costly, but did you know that failing to properly investigate an allegation of discrimination can itself constitute discrimination under the Ontario Human Rights Code (“the Code”)? In AB v 2096115 Ontario Inc cob Cooksville Hyundai, 2020 HRTO 499 (CanLII), the Human Rights Tribunal of Ontario found that the employer had failed to take the employee’s claims of discrimination seriously. This failure cost the employer $55,000.

The employer, Cooksville Hyundai, is a car dealership. The employee, AB, worked as a parts driver for seven months, from November 2015 to May 2016. In March 2016, she was sexually assaulted by her supervisor (who ultimately pled guilty to assault). AB immediately reported the assault to Cooksville Hyundai’s human resources department.

The internal investigation into AB’s complaint did not follow the company’s Workplace Harassment Policy. In fact, the Tribunal found that the internal investigator did not even consider whether the Policy might apply. Moreover, the investigator concluded her investigation only thirty minutes after meeting with AB. While the investigator did speak to AB’s supervisor, she did not directly question him about the substance of AB’s complaint. In the end, Cooksville Hyundai granted AB’s request for a change in supervisor and took no further action.

The Tribunal concluded that Cooksville Hyundai “effectively did not conduct” any investigation at all. As a result, the Tribunal found the company in violation of the Code.

It is well-established that sexual harassment and sexual violence constitute sex-based discrimination under the Code. In other words, when Cooksville Hyundai failed to properly investigate AB’s allegation of sexual assault, it discriminated against AB on the basis of sex. As a consequence of this failure to investigate, AB was forced to endure a poisoned work environment—a further violation of her rights under the Code.

Takeaways for Employers

· Takeaway #1: Allegations of discrimination should be taken especially seriously – AB was discriminated against on the basis of sex, but the rule that the Tribunal applied—that a failure to properly investigate an allegation of discrimination is itself discrimination—is not unique to sex. Under the Code, every employee has a right to a discrimination-free workplace. As a result, every employer has a corresponding duty to provide a discrimination-free workplace. An employer who tolerates discriminatory conduct (or who fails to respond appropriately to allegations of discriminatory conduct) is an employer who violates the Code. It does not matter whether the discrimination is based on sex, race, religion, sexual orientation, gender identity, disability, or another ground listed in the Code. Employers must at all times be conscious of their duties under the Code, such that they can identify and respond to potential discrimination in a timely and Code-compliant manner.

· Takeaway #2: Policies are not enough – On paper, Cooksville Hyundai is well-equipped to handle AB’s complaint. The company has both a Workplace Harassment Policy and a Workplace Violence Policy, but neither policy was even considered, let alone followed. A policy that is not followed counts for nothing. Indeed, a policy that is not followed may be worse than no policy at all, as an employer who fails to follow company policy may be found to have acted in bad faith. Employers must ensure that workplace harassment policies are taken seriously, and, moreover, that human resources staff are trained to identify allegations of workplace harassment as such. After all, the employer’s duty to investigate is not contingent on the complainant using the correct “magic words.”

· Takeaway #3: Words are not enough – AB was assured by the investigator that Cooksville Hyundai takes allegations of sexual harassment and sexual violence “seriously”, but, as the Tribunal noted, the investigation into AB’s complaint “does not reflect a serious or thoughtful consideration of the allegations.” In other words, the mere “performance” of an investigation is not sufficient. As with Takeaway #2 above, a broken promise (in this case, the promise that AB’s complaint would be taken seriously) may be worse than no promise at all. Failing to take a complaint seriously is bad enough, but failing to take a complaint seriously after promising to do so may be even more damaging to the employer’s position.