To say sexual harassment is a hot topic at the moment is an understatement. From Donald Trump’s now infamous Access Hollywood tape to multiple reports at Fox News to the Harvey Weinstein scandal, there is heightened awareness of the seriousness of sexual harassment and its impacts, particularly in the workplace.
Despite the high profile nature of these cases, workplace sexual harassment is not confined to the upper echelons of industry and corporate boardrooms. A Toronto writer’s question on Twitter: “When did you meet YOUR Harvey Weinstein?” opened the floodgates, with over 5000 responses of women describing when they were sexually harassed for the first time. The online #MeToo movement has encouraged a collective conversation about personal experiences of harassment and assault. A 2014 Angus-Reid poll showed that 43% of Canadian women have been sexually harassed in the workplace. Twenty percent of women have experienced unwanted contact.
When sexual harassment occurs in a workplace setting, the Supreme Court of Canada has articulated that this is “an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.”
Amidst the stunning headlines and sobering statistics lies the reality that, more often than not, incidents of harassment and violence remain underreported because complainants feel that employers will not respond effectively. A recent public consultation conducted by the federal government identifies that 75% of individuals who come forward face challenges in resolving the complaint, including not being taken seriously or experiencing retaliation. An October 2017 Abacus Data survey shows that 70% of the respondents believe that harassers face no consequences.
By contrast, a recent Alberta decision of Watkins v. Willow Park Golf Course (2017 ABQB 541) articulated support for an employer’s decision to terminate an employee on the basis of serious allegations of verbal and sexual harassment.
Ralph Watkins was the Golf Course Superintendent for Willow Park Golf Course from January 1999 to October 2011. Prior to the complaints that arose at the end of his tenure, he had an unblemished record with the organization.
Ms. Andrea Li was a member of the grounds crew for the golf course. She became the object of Mr. Watkins’ affections in May 2011. Mr. Watkins was her direct supervisor.
Ms. Li and Mr. Watkins spent time together and he believed that Ms. Li shared his feelings. Mr. Watkins also displayed preferential treatment toward Ms. Li in the workplace. She was promoted; she got a raise and was allowed to come in late to work. Mr. Watkins openly expressed his feelings about Ms. Li to coworkers, stating that he was “smitten” and “in love” with her.
Ms. Li did not have an interest in Mr. Watkins and eventually “rejected” him in summer 2011. She asked him not to text or email her outside of work for non-professional purposes. Despite this, Mr. Watkins continued to pursue her and communicate with her. He sent drunken text messages during the night professing his love for her. On another occasion, he asked Ms. Li if she watched pornography.
Their relationship became increasingly volatile and disruptive in the workplace. Mr. Watkins was aggressive, yelling and angry toward Ms. Li. He called Ms. Li a “c**t” or a “f*****g c**t.” This behaviour was also directed to other staff.
Mr. Watkins did not feel he did anything wrong and thought this was an acceptable workplace interaction. He characterized this as “man talk” or “locker room talk.” (Where have we heard that phrase before?) He also described it as an “old-fashioned style of management.”
Ms. Li submitted a letter of complaint to the Management Committee regarding Mr. Watkins’ behaviour, on October 26, 2011. That day, the President spoke with other employees who confirmed Mr. Watkins’ unprofessional behaviour.
The Committee met with Mr. Watkins on October 27. He was given Ms. Li’s letter to review at the meeting. He denied the allegations and was terminated, essentially on the spot. Ms. Li was not spoken to regarding her allegations. There was no further investigation.
Among the reasons that Mr. Watkins challenged his termination was the fact that his employer did not properly investigate the claims or provide him with an opportunity to respond. The judge stated that although this was an example of an inadequate investigation, Mr. Watkins’ serious conduct justified his termination.
In our view, it would be prudent for an employer to complete a fair and thorough investigation prior to making any determinations that significantly affect a person’s employment status. The obligation to investigate complaints against an employee is typically included in most legislation dealing with workplace harassment, such as Ontario’s Bill 132. A thorough review of Bill 132’s impact over the past year was recently undertaken by my colleagues, Janice Rubin and Cory Boyd, in their webcast.
This case is remarkable because of the judge’s clear articulation that Mr. Watkins’ actions constituted sexual harassment, which justified him being terminated for cause. The judge considered the following factors in coming to his conclusion:
- The list of Mr. Watkins’ inappropriate conduct included invitations to Ms. Li to spend time with him, admitted feelings of affection, expressions of desire for physical contact, intimate text and email messages, arguing and swearing at Ms. Li and other bullying behaviour.
- Watkins continued to communicate with Ms. Li even after she confronted him to stop. Mr. Watkins’ behaviour then escalated. The harassment happened over several months. This made the harassment more serious in the eyes of the judge.
- The fact that Mr. Watkins had worked for the company for 13 years without incident did not serve as a mitigating factor when considering the seriousness of the conduct.
- Watkins was Ms. Li’s direct supervisor. His behaviour was a clear abuse of power. Ms. Li was economically dependent on the job as a single mother. Mr. Watkins knew that he could help or hurt her career aspirations. The imbalance of power in an employer-employee relationship requires added vigilance.
- Watkins failed to recognize that this behaviour was problematic. He outright denied the allegations. As described above, Mr. Watkins dismissed his abrasive and abusive communication-style with staff as “locker room talk.” Characterizing sexual harassment in this way minimizes the seriousness of the behaviour.
- In his position as a manager, Mr. Watkins had a duty to create a safe and respectful workplace for all his employees. He failed to do this. His behaviour was described as “unacceptable for a management-level employee.” He created an environment of fear, frustration, and acrimony within the workplace. Mr. Watkins’ failure to keep his issues with Ms. Li out of the workplace created a poisoned work environment.
The judge in this case is unequivocal that the type of harassment and the level of seriousness were unacceptable in a professional workplace. Mr. Watkins’ behaviour was classified as being “on the more serious end of the spectrum.” As a result, the decision to terminate for cause in the absence of an investigation was upheld. With this said, although an employer may choose to quickly terminate employees accused of sexual harassment, a thorough investigation where all parties are interviewed and a respondent is given an opportunity to respond to the allegations can strengthen an employer’s decision to terminate.
The high-profile stories in the media all follow similar narratives to the Watkins decision: men in positions of power interacting with female employees in inappropriate and aggressive ways. Encouragingly, more and more women are speaking out about their experiences and reporting incidents of harassment. Strong public pronouncements, including by the courts, of what constitutes sexual harassment will reinforce the growing awareness of this systemic issue.