The #metoo Movement and Interim Measures
Ryerson University v Ryerson Faculty Association, 2018 CanLII 111683
In Ryerson University and Ryerson Faculty Association, a recent case out of Ontario, an arbitrator was asked to consider the appropriateness of interim measures imposed on an employee by an employer pending the completion of an investigation into allegations of sexual assault against the employee.
The employer, a university, received a complaint from a student that a professor had sexually assaulted her. The specifics of the complaint included that the professor had paid unwanted attention to the student and that he had, upon entering the student’s house one evening, made inappropriate and “unwanted physical contact” with her.
The complaint was made under the university’s sexual violence policy. The policy set out a process for the filing, investigation and adjudication of complaints of sexual violence. The university did not suspend the professor when it received the complaint and the university continued to pay the professor. However, the university imposed a number of interim measures on the professor:
- the professor was prohibited from contacting or communicating with the student;
- the professor was banned from attending the campus; and
- the professor was prohibited from having any unsupervised in-person contact with other students of the university, whether on or off campus.
The faculty association did not take issue with the measure that prohibited the professor from contacting or communicating with the student. However, the association grieved the imposition of the other two measures. In arguing that they were excessive, the association highlighted two things. First, the student no longer attended the university. Second, the professor had worked at the university for over 20 years and no other complaint had ever been made about him.
In his decision, the arbitrator started by recognizing that his job was to balance two conflicting interests: On the one hand, the employer’s right to take preventative action to protect itself and on the other hand, the fact that a person’s employment is an essential part of their sense of self-worth and emotional and financial well-being.
The arbitrator then went on to explain that the onus was on the university to demonstrate that it acted in good faith and that the interim measures that it imposed were reasonable and justified in the circumstances.
The arbitrator considered the various arguments and justifications provided by the university. In deciding to uphold the interim measures, the arbitrator recognized one of the justifications as by far the most compelling: the university’s reputation.
The arbitrator further noted that the university was especially justified in considering its reputation given the current social climate: “This increased awareness of the pervasiveness of acts of sexual misconduct/violence … would cause any objective observer to recognize the increased potential harm to the Employer’s reputation and image”.
However, the arbitrator did clarify that reputational concerns cannot justify any and all interim measures. Instead, where the seriousness of the alleged sexual misconduct is on the lower end of the spectrum, the employer’s reputation may not justify such significant or oppressive interim measures.
The decision in this case is important because it confirms that employers are justified and even expected to consider their reputation when handling complaints of sexual misconduct. Taking this even further, the decision also suggests that employers will be allowed to impose fairly significant interim measures in order to protect their image. The decision also signals that in the current social climate, and in particular in the wake of the #metoo movement, employers may be given more leeway or deference when it comes to imposing interim measures.
Having said this, the reasoning in this case may not apply as strongly to other types of employers. Universities tend to be exposed to more public scrutiny than many other types of employers. It is also extremely significant that the allegation was made by a student against a professor. Nevertheless, this decision is important for all employers to keep in mind when deciding whether to impose interim measures on an employee pending the completion of an investigation into allegations of sexual harassment and also what specific interim measures to impose.
Whether and what interim measures are reasonable and justified is a complex issue and depends very much on the particular circumstances. In addition to the employer’s reputation and image, other important factors to consider include:
- the nature of the allegations;
- whether there is a sufficient connection between the act with which the employee is accused of and the kind of employment the employee holds; and
- whether there are immediate and significant adverse effects that cannot practically be counteracted by other measures (such as assigning the employee to another position).
Field Law’s Labour and Employment lawyers can assist you and your organization with applying these factors and deciding whether it is appropriate to impose interim measures. They can also assist when it comes to handling complaints of sexual harassment or other types of complaints or employee concerns.