Application Alleging Sexual Harassment and Discrimination Dismissed for Failure to Establish Nexus between Workplace and Misconduct
In a recent application before the Ontario Human Rights Tribunal, the Applicant, a teacher, alleged they had been sexually harassed and discriminated against in relation to a series of text messages they received from the spouse of a vice-principal. In Cillis v. Hamilton-Wentworth District School Board, 2024 HRTO 1006, Adjudicator Ghanam dismissed the application on the basis that the Applicant had failed to establish a nexus between the misconduct and the workplace, and because the applicant failed to establish that their Employer, the School Board, had engaged in discrimination.
The Applicant was scheduled to start work in September 2018 as a part-time occasional teacher with the Employer / School Board. The Applicant alleged that in August 2018, one month prior to their start date, the spouse of the school’s vice-principal sent the Applicant a series of text messages that were sexual in nature. The Applicant reported the text messages to their union representative. The Applicant, their union representative, and the School Board met to discuss the Applicant’s concerns.
In response to the Applicant’s concerns, the Employer offered the Applicant a paid leave for one week while the Employer located an alternate assignment for the Applicant, and to move the Applicant so they would not be required to report to the vice-principal. The Employer also suggested that the Applicant file a police report, which the Applicant did one and a half months later. The Employer explored further potential actions, including the commencement of an internal investigation, advising the vice-principal about the text messages, sending the harasser a cease-and-desist letter, and implementing a workplace safety plan for when the Applicant returned to work.
The Applicant did not provide any direction as to what they required and remained on medical leave. The Applicant did not return to work for the entirety of the semester.
In January 2019, the Applicant requested accommodations for a mental health disability during an interview process for permanent roles. The accommodations included extra time to prepare before the interview and a request that a certain panel member not be assigned to their interview. The Employer granted the accommodation requests, although perhaps not to the full satisfaction of the Applicant’s expectations. The Applicant was offered a full-time position due to this interview process; however, they remained on leave and extended their leaves during the 2019-2020 and 2020-2021 school years.
The Applicant brought the Application before the Tribunal about the impugned text messages and the full-time position interview process, alleging sexual harassment and discrimination because of gender identity and disability with respect to employment, contrary to the Ontario Human Rights Code (the “Code”).
Adjudicator Ghanam concluded that the Tribunal lacked jurisdiction to hear the Application for the following reasons:
- The Code did not apply: the alleged harasser was not an employer, an agent of the employer, or another employee, and the alleged harasser did not have any ability to confer or deny the Applicant a benefit. The allegations based on sexual harassment in the social area of employment did not meet the definitions under the Code.
- Not a poisoned work environment: as the Applicant never returned to the workplace, their allegation of a poisoned work environment was not made out, as no social area under the Code was engaged.
- Potential for negative impact to career speculative: the Applicant’s assertion that their career could have been negatively impacted if the vice-principal became aware of the text messages was based on mere conjecture. The Applicant had not returned to the workplace and had been awarded a permanent position in a subsequent hiring competition.
Concerning the Applicant’s allegation that the Employer failed to accommodate their disability during the full-time teaching position hiring process, Adjudicator Ghanam found no breach of the Code as the Tribunal could not identify any adverse treatment of the Applicant. Although the accommodations requested concerning the interview process were not precisely what the Applicant expected, the Code obligates employers to provide reasonable, not perfect, accommodation.
The Application was dismissed based on the above.
This case highlights the importance of establishing a nexus between the workplace or the employer’s actions and the impugned conduct. Specifically, an applicant must establish a clear “factual basis beyond conjecture and bald assertions which link their enumerated grounds to the respondent’s actions, or which demonstrate actual adverse treatment, so as to be considered substantive discrimination.” An applicant’s failure to establish such a factual basis and nexus could mean a lack of jurisdiction or an unsuccessful application before the Tribunal.
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