Human Rights Office

Human Rights Office
Human Rights Office

Ontario Public Service Employees Union v. Toronto Community Housing Corporation (Security Group), 2015 ON LA 13548 (CanLII)

Summary:

In this case, Janice Gordon filed a grievance against her employer, Toronto Community Housing Corporation (Security Group) (TCHC) alleging that she had been  subject to sexual harassment and a poisoned work environment when her employer failed to adequately address sexualized rumours circulating in the workplace. Ms. Gordon began working for the TCHC in 2005. During her time with TCHC she worked in a number of roles including parking enforcement officer, community patrol officer and special constable. At the time when Ms. Gordon worked for TCHC she was one of very few female employees and the only black female employee. Between December 2005 and June 2006 rumours started to circulate that Ms. Gordon was engaged in a sexual relationship with Mr. Kenley, a manager within the Community Safety Unit. These rumours indicated that Ms. Gordon was receiving preferential treatment because of her sexual relationship with Mr. Kenley. In October of 2006 Ms. Gordon informed Terry Skelton, Director of the Community Safety Unit about these rumours. After hearing these complaints a meeting was arranged for Ms. Gordon, Mr. Kenley and the Senior Consultant in Human Rights for the Community Safety Unit. At this meeting Ms. Gordon was informed of her options moving forward. In January of 2007 Ms. Gordon indicated that she wanted a formal investigation and filed a workplace complaint. In February of 2008, Mr. Skelton advised Ms. Gordon that an investigation was not necessary and stated that they were going to deal with the rumours in the workplace through an education and training program. As part of this education and training program, emails were sent out to all Community Safety staff stateing that there was a zero tolerance for rumours in the workplace and that this type of behaviour was contrary to the code of conduct for TCHC employees. Since the actions taken by management in relation to the workplace rumours was perceived as ineffective, the union representing Ms. Gordon filed a grievance in July of 2008.

Question to be Determined:

1.    Was there discrimination and/or harassment contrary to the Code and the collective agreement?

2.    Did the employer meet its duty of due diligence?

Findings:

1.    Was there discrimination and/or harassment contrary to the Code and the collective agreement?

YES

2.    Did the employer meet its duty of due diligence?

NO

Reasoning:

1.    In this case it was decided that the rumours circulated in the workplace regarding a sexual relationship between Ms. Gordon and Mr. Kenley amounted to sexual harassment and contributed to a poisoned work environment.

    I am satisfied that the evidence of rumours established that the grievor was subject to sexual harassment contrary to the Code. The workplace is heavily male-dominated and one where hierarchy and authority are valued. Where those attributes are valued, they may also be resented, particularly in a woman. The grievor presented as a strong, confident, and assertive female within that environment. The workplace rumour contained the implicit, and in some cases, explicit message that the grievor was receiving preferred treatment at work from a supervisor in exchange for sexual favours. That, I find, was related to her gender. The evidence established that the rumour was persistent and well-known within the grievor’s work milieu within the CSU and likely circulated with less attention in the rest of that department. That reflected a course of  conduct as the rumour was repeated through the workplace over a significant period of time (para 292).  

    I accept that the sexual nature of this rumour disparaged the grievor and that it had a negative impact on her co-workers’ view of the grievor. While I do not suggest that the rumour did not also affect Mr. Kenley, in the circumstances here, the grievor was the subordinate and was being targeted as receiving workplace favours in exchange for sex. It was a course of vexatious comment or conduct that co-workers knew or ought reasonably to have known was unwelcome (para 293).

2.    Due to the finding of sexual harassment and a poisoned work environment, the employer has a duty of due diligence. In this case it was decided that, although acting in good faith, they failed to reasonably address the sexual harassment experienced by the grievor. Rather than doing an investigation into the complaints of these rumours, the employer chose to deal with the rumours on a systemic basis by providing training.

    The employer was aware that employees had been exposed to, and were circulating a rumour claiming that the grievor was engaged in a sexual relationship with a supervisor and was receiving preferential treatment in exchange for sex. The deleterious effect of this kind of rumour is not limited to the subject individuals. The workplace environment was poisoned not only because of overt discussion of sexual practices, but because of the increasing resentment toward perceived unfairness; that someone was getting special treatment, benefits, and/or protection at work in exchange for sex. That concern was, or should have been apparent to the employer in November 2006 (para 317).

    Having regard to all of the above, I find that, in meeting its obligation to provide a workplace free from harassment and discrimination, it would have been prudent for the employer to conduct an investigation into the rumours, and the failure to do so in these circumstances was unreasonable. However, even assuming that the employer was not required to investigate the rumours, I find that the actions taken by the employer to address the sexual harassment suffered by the grievor were unreasonable as being both     insufficient and untimely. The employer also failed to act reasonably by failing to address in any way the effect or validity of the rumours circulating about the grievor within the CSU (para 325).

Remedy:

    Matter was remitted to the parties for consideration of remedy.