Sexual harassment litigation is on the rise
In determining whether sexual harassment has occurred, the intentions of the person concerned are generally not relevant. It only needs to be established that the attacked employee should have known that his behavior would be undesirable, even if he had not subjectively come to this conclusion.
Once a sexual harassment allegation is made, the relevant workplace, university, college, or regulatory agency will begin the investigation. In almost all cases, both the complainant and the accused are questioned during this investigation. In many cases, a defendant will feel compelled to participate. Some employees may even feel like they are being terminated if they don’t get involved. In the case of professional regulators or college or university campuses, refusal to participate in the investigation could have serious consequences, including permanent suspension or the determination of professional misconduct.
However, in some cases the risk of commenting can be even greater. There is always the possibility that the complainant will bring his allegations to the police. When criminal allegations and charges are made, an accused always has the right to remain silent and to seek legal counsel. These rights protect accused persons from making incriminating statements to law enforcement agencies that could later be used as evidence in their conviction.
However, these rights may become superfluous if the accused has already presented evidence. Any testimony or other evidence gathered in the course of the investigation can be used against the accused in a criminal prosecution for sexual assault.
This creates an inherent conflict in navigating a sexual harassment investigation. A defendant must balance his or her rights under Canada’s Charter of Rights and Freedoms with an obligation to work with a workplace, college, university, or government investigation.