By now, most of us have heard about a controversial decision of the Manitoba Court of Queen’s Bench in which Justice Robert Dewar sentenced a man found guilty of sexual assault to a two year conditional sentence, allowing him to remain free in the community and avoid any jail time.

In his decision, which critics have referred to as outdated and sexist, the Judge noted that the defendant and a friend had met the 26-year-old victim and her girlfriend earlier that night outside a bar under what he called “inviting circumstances.” In particular, Justice Dewar commented that “sex was in the air”, and specifically referenced the fact that the two women were wearing tube tops, no bras, and high heels, along with plenty of makeup.

Justice Dewar referred to the defendant as a “clumsy Don Juan”. The evidence showed that he had forced the victim to have sex in the woods along a dark highway outside Thompson, Man., in 2006. As the Judge noted, “This is a different case than one where there is no perceived invitation,” said Dewar. “This is a case of misunderstood signals and inconsiderate behaviour.”

Understandably, that decision has drawn criticism for both the result and the comments therein. However, in a perhaps indirect way, it is relevant to those of us who deal with human resources issues and, in particular, harassment complaints. In the case referenced above, the defendant was found guilty. However, the perceived extenuating circumstances impacted the penalty that was imposed. A similar result can occur in the context of a harassment, or sexual harassment, investigation. It would not be inconceivable for an employer, court or tribunal to find that an employee had harassed a co-worker, but that a relatively less severe penalty was appropriate due to extenuating circumstances.

As most readers will know, in order to determine how an individual should be penalized for any form of misconduct, a contextual approach must be adopted in which all relevant factors are considered. In the context of harassment or sexual harassment, it is important to consider whether there were appropriate policies in place, whether they had been made known to all employees, and whether they were enforced consistently. If the evidence shows that there was no policy, or that the written policy was routinely ignored, it is likely that summary dismissal will not be sanctioned. Evidence of a permissive work environment in which inappropriate materials are regularly displayed or distributed, or sexual banter is tolerated or encouraged, will serve to mitigate any penalty. Similarly, evidence that similar conduct has been allowed or condoned in the past, whether it was perpetrated by the same individual or others, can easily lead to findings of condonation which will mitigate against severe sanctions.

Evidence of a past consensual relationship, or at least consent to the type of behaviour in question, is often raised in the context of harassment investigations. Recently, the British Columbia Human Rights Tribunal’s dealt with the case of McIntosh v. Metro Aluminum Products Ltd. and Zbigniew Augustynowicz. Ultimately, the tribunal awarded damages for sexual harassment by “sexting”. For those unfamiliar with the term, it refers to exchanging text messages of a sexual nature, which include words, photos, or both.

In that case, the perpetrator was also the owner of the business. The evidence was clear that the owner and the victim had previously been involved in a consensual sexual relationship which included routine sexting. Ultimately, the victim ended the relationship but the owner of the company continued to send her inappropriate text messages which grew more offensive over time. Ultimately, after these messages continued despite her making it clear that they were unwelcome, the victim brought her claim. She succeeded, and was awarded $14,493.80 as compensation for lost wages, $2,900.85 as reimbursement for expenses incurred in pursuing her claim, and $12,500 as damages for injury to dignity, feelings and self-respect.

In many instances of alleged sexual harassment, the facts are “muddied” by a past consensual relationship. This is not to suggest in any way that prior consent will justify any form of harassment or assault. However, it does make determining what happened, and the degree of fault, more difficult. Part of the analysis will include whether the perpetrator knew, or should have known, that his conduct was unwelcome. In the McIntosh case referenced above, the evidence was clear in this regard. In other cases, it may not be. That may be a factor in determining the appropriate form of discipline to be imposed.

These issues have become particularly relevant in light of technological advances. There seems to be no shortage of cases involving harassment by texting, FaceBook, email and the like. Policies should be reviewed in order to ensure that such conduct is addressed. And employees should be told unequivocally that such conduct is unacceptable and will not be tolerated. Employees should also be clearly told what they should do and who they can speak with if they are the victim of such conduct.

There will always be romantic or sexual relationships in the workplace. While employers can seek to impose mechanisms to address the concerns that this creates, they will never be able to remove them altogether. As suggested above, it is crucial that appropriate policies not only be drafted, but that they be disseminated so that every employee, including management, is aware of them. Furthermore, the policies must be consistently enforced, so that there cannot be an argument that breaches were condoned or that a permissive work environment was allowed to exist. Otherwise, employers will be in a weaker position when it comes to disciplining the offender, and will also expose themselves to liability.

Ultimately, while Justice Dewar’s comments may seem outdated and irrelevant in modern society, they have provided a reminder that those of us who deal with human resources issues should review existing policies, ensure that they address modern realities appropriately and that they are being enforced. They should also make every effort to be aware of workplace relationships and ensure that they are consensual and that positions of authority are not being abused. Ultimately, employers should strive to remove any “invitations to harass” that they cannot address.

Stuart Rudner
Miller Thomson LLP