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“She said, he said.” Problems of Proof in Workplace Sexual Harassment Cases

It is imperative to identify, understand and prevent all forms of sexual harassment in the workplace.

Workplace Harassment Victims:

Victims of workplace  harassment are often reluctant to come forward because there were no eye witnesses to the harassing conduct. This is especially true in sexual harassment because of its personal nature; the offensive behaviour often happens in private. It is also common where there are power differentials; victim workers expect that the perpetrator boss will be believed over them.

While direct evidence carries the most weight, indirect evidence can often tip the scales for or against a complaint where no witness actually observed the conduct in question.

For example, in a case where witnesses observed the victim emerge from the boss’s office visibly upset, with her clothes in disarray and her hair mussed, the evidence supports the victim’s contention that the boss grabbed and tried to kiss her over his flat denials.

In other cases, there may be similar fact witnesses. For example, another woman reports that she too was explicitly propositioned in a manner similar to the complainant.

“She Said, He Said”:

Tribunals have dealt with the problem of “She said, he said” cases. In a decision by the Ontario Human Rights Tribunal (2017 HRTO 1432), the credibility of the parties was key.The complainant was employed by a used car dealership as a bookkeeper. Early on in her employment, her boss made sexualized jokes and sent sexual content by email. This escalated to snapping her bra and smacking her buttocks. The complainant objected mildly more than once but she was otherwise happy in her job and did not want to jeopardize it. Subsequently, she became seriously ill, was off for a period of time and was still recovering when she returned to work.  Already stressed, the complainant reacted angrily when the boss again snapped her bra. She confronted him and demanded that the behaviour stop. Thereafter, her boss treated her differently, was critical of her work and ultimately fired her.

The complainant had no witnesses to support her testimony at the hearing. The boss denied all allegations. The Tribunal found her statements to be consistent, forthright and credible. On the other hand, the boss’s statements were not consistent. The employees called to testify by the boss did not substantiate some of the surrounding facts he had claimed, notably the circumstances surrounding Karen’s termination. The Tribunal found that the boss’s testimony was not credible.

Despite the absence of eye witnesses, the Tribunal found in favour of the complainant in this “She said, he said” case and awarded her $30,000 in damages.

Bill 132 States: 

“On March 6, 2015, the Government of Ontario announced “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”. The Government will not tolerate sexual violence, sexual harassment or domestic violence. Protecting all Ontarians from their devastating impact is a top Government priority and is essential for the achievement of a fair and equitable society.”

All Ontarians would benefit from living without the threat and experience of sexual violence, sexual harassment, domestic violence and other forms of abuse, and all Ontarians have a role to play in stopping them.

Topics covered in our Bill 132 – Sexual Violence & Harassment Training include:

  • Responsibilities and Liabilities for Sexual Violence & Harassment
  • Definition of Sexual Harassment
  • Clear vs. Unclear Behaviour
  • Victims of Sexual Harassment
  • Types of Sexual Harassment
  • Poisoned Work Environment
  • How Sexual Harassment can turn to Violence
  • Definition of Violence
  • Poisoned Work Environment
  • Gender/Pregnancy
  • Behaviour Based on Stereotypes
  • Examples of Sexual Harassment or Inappropriate Gender-Related Comments or Conduct
  • Where to Draw the Line?
  • What to Do if you Believe you are Being Sexually Harassed?
  • #MeToo Movement
  • Bystander Intervention
  • Warning Signs

If you need assistance with a  workplace harassment investigation we have over 25 years of experience.

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