Workplace Sexual Harassment

Duty to Investigate

This issue is reviewed in detail here. The law on employer liability for failure to investigate a human rights complaint appears controversial at the moment as to whether this gives rise to an independent human rights violation. The most recent decision in a civil proceeding states that the failure to do so can lead to a poisoned work environment and hence direct employer liability.

Occupational health and safety statutes also create the obligation to create a workplace policy document to set out procedures to report and investigate workplace abusive behaviours, including sexual harassment. This is reviewed here.

The issue of a prompt and effective investigation takes on added emphasis in cases of continuing offensive conduct, and in particular of sexual harassment. This is so as the continuum of this conduct will lead to incremental emotional distress.

This was the case in the City of Calgary case in which the arbitrator found that the damage claim was to be set at $125,000 in addition to substantial lost income sums, past and future.

Similarly, the failure to investigate led the B.C. Tribunal award in Francis, awarding $176,000 for emotional harm and significant sums for past and future income loss.

On the same basis, the Alberta Tribunal awarded $50,000 for emotional damages. It was determined that the adverse conduct of the company had a "profound effect" on the complainant, that her allegations were not properly investigated and that the conduct was "not inadvertent".