In Prosko v. District of Taylor (No. 2), an employee filed a human rights complaint against their employer alleging discrimination on the basis of sex. The employee alleged that a coworker sexually harassed her, that her employer (the “District”) did not respond appropriately when she reported the harassment, and that the accused coworker had subsequently influenced the District’s decision to terminate her employment.

In a previous decision, the BC Human Rights Tribunal (the “Tribunal”) dismissed the complaint against the coworker and the allegation that the termination of the employee’s employment was connected to the alleged harassment.

In this case, ultimately, the Tribunal decided the District’s response to the employee’s report of workplace sexual harassment was not discriminatory. In arriving at this decision, the Tribunal made some key comments for employers.

The Findings

In this type of complaint, an employer’s failure to adequately or appropriately respond to an internal complaint of discrimination may itself amount to discrimination.

The Tribunal found that the employee complainant had raised allegations of harassment originally in an email and then a meeting with a superior. The superior had acknowledged her concerns and encouraged the employee to follow the procedure set out in the District’s Harassment Policy (the “Policy”). The employee requested confidentiality and did not make a formal complaint in accordance with the Policy.

The employee then raised the allegations in a meeting with the Mayor and in a further letter to a superior. The Tribunal found that the Mayor brought the allegations to the management team promptly who indicated they were aware of the complaint and had

provided support and set out options for the employee including making a formal complaint and triggering an investigation under the Policy.

All of the steps taken by the District were documented and produced in support of the District’s case.

Accepting that the District had met with the employee, acknowledged her concerns and informed her of her options including the steps required to make a formal complaint, the District was found to have appropriately responded to the complaint and was not liable for the alleged discrimination.

The Key Takeaways

• Employers have a positive obligation to investigate any harassment complaint they receive to ensure they respond appropriately.
• Initial investigations can be informal, particularly if the employer has a harassment policy which mandates a specific process, and the employee is informed of that process.
• Employers should have a robust harassment policy that clearly sets out the steps to take when receiving a harassment complaint.*
• Employers should ensure every step of an employer’s response to a complaint is documented.

*While a harassment policy will assist in setting out the steps required when receiving a harassment complaint, we must note that a policy in and of itself is not a complete answer to a discrimination complaint. Rather, the Tribunal will conduct a case-by-case analysis that will ask whether the employer followed their policy and whether that policy was appropriate in the circumstances.

We are here to assist you in assessing a discrimination complaint, your next steps, and the extent of the investigation required as well as the adequacy of any existing policies in place.