British Columbia Sanctions Workplace Sexual Harassment
The Law Society of British Columbia Hearing Panel has sanctioned an attorney for admitted misconduct by imposing a fine, costs and a sensitivity training course
The Respondent makes a conditional admission of professional misconduct by sexually harassing two employees between May 14 and July 4, 2014. He consents to pay a $10,000 fine by June 30, 2017. He consents, as a condition pursuant to section 38(7) of the Legal Profession Act, to complete a sensitivity training course satisfactory to the Law Society within a time approved by the Law Society, which he has completed. He consents to pay an agreed amount for the costs of the hearing and acknowledges he will be identified in the publication of a summary of the disciplinary action required by Rule 4–48.
The story
The background to the formal complaint and citation is a cautionary tale. The taboo is workplace sexual harassment committed by a person with power in the employment relationship who has come to the fate of public shame, family anguish, financial cost and professional discipline. The tale is enlivened by complainant courage and Respondent contrition, cooperation and personal awareness.
The Respondent, called to the bar in 2001, is a sole practitioner whose practice is principally in family law. He has no prior disciplinary record. He has been a respected participant in the legal community and has engaged in several endeavours in the broader community. He had a weekly radio program; gave interviews on legal matters; did pro bono work; provided mentorship; and funded an award at the University of Victoria to recognize students demonstrating enthusiasm and perseverance who are not necessarily high academic achievers. He had ambitions for future achievements within the profession and as an elected political representative in his community.
The complainant, after completing her first year at law school, was the successful applicant for a summer position as an administrative assistant in the Respondent’s firm. The position, like previous ones successfully filled, was posted at the complainant’s law school by the Respondent’s wife, JE, who has a Master’s degree in Psychology and, among other duties, is the firm’s human resources person. She interviewed six applicants and selected the complainant, whose prior receptionist experience qualified her as the best candidate. The complainant began employment May 14, 2014.
In May and June, the complainant was distressed by the Respondent’s inappropriate comments of a sexual nature to her and one touch to her lower back. Several of the comments were made in the presence of a full-time employee hired May 12, 2014 to complete her practicum to qualify as a paralegal. A third employee hired January 6, 2014 as a paralegal was on medical leave from April 23 to May 20. She completed her term of employment May 28, 2014.
The Respondent’s comments of a sexual nature detrimentally affected the office environment for both the complainant and the newly-hired paralegal, both of whom worked predominantly in a reception area. The paralegal worked occasionally in a spare office.
The complainant kept a journal of her concerns about the Respondent’s conduct. She reported her concerns to friends and family by text messages and sought advice in June from a professor to whom she reported feeling “vulnerable, depressed and timid.” She wrote in an email:
… He is quick to comment on my clothing and has suggested, at different times, that I should show more cleavage and wear shorter skirts. I have been very careful about my clothing, showing no cleavage and making sure that my skirts are no shorter than just above my knees. He pitches his suggestions as being humour, but they are too frequent and direct to be ignored.
During their weeks of employment, because of their vulnerability, the complainant and paralegal were faced with the hard choice of suffering the prospect of unwelcome comments each day at work or speaking out about their impact on them to the Respondent or JE. There was no one else at work to whom they could speak, and they were working to complete qualifications to become a lawyer and a paralegal. What would happen if they did speak out?
On the morning of July 4, 2014, the Respondent shouted the complainant’s “name at the top of his lungs for no apparent reason.” She arranged a meeting with the Respondent later that day to discuss “office dynamics” and arranged for the paralegal to attend. She raised his shouting and the manner in which he dealt with staff performance issues. The agreed statement of facts includes:
… She then raised the issue of the Respondent’s comments in respect of her clothing making her feel uncomfortable. The Respondent asked for examples. The complainant provided the examples of the Respondent’s comments on her cleavage and how her skirts could be shorter. He agreed his comments were inappropriate and he also said he thought they had a banter.
The Respondent apologized for his conduct in the meeting and took the complaint seriously and agreed to modify his behaviour. The Respondent did modify his behaviour and made changes to his office policies to prevent the repetition of any such conduct. The Respondent in an effort to deal with this complaint introduced office policies on the following issues: dress code, sexual harassment and harassment and bullying. … The new office policies introduced because of this July 4 complaint were prepared over a number of months by JE and the Respondent.
After the meeting, the Respondent’s comments and conduct of a sexual nature stopped.
There was agreed evidence that the attorney created a hostile work environment
1. In or about May 2014, the Respondent said to the student, who was wearing pants, “You’re not wearing a dress today?” in a tone of disappointment. The Respondent does not recall the conversation, but does not deny it.
2. In or about May 2014, the paralegal and the student were in the office kitchen. The paralegal in a joking manner said to the student “alone at last, my love,” to which they both laughed. The Respondent came back into the office and asked why they were laughing. When they told him why, he responded saying that his policy on sexual harassment was that only he was allowed to do it. Both the paralegal and the student recall this incident. The Respondent does not recall this specific conversation, but admits it is consistent with the type of banter he engaged in at the office.
3. On May 28, 2014, the student raised with the Respondent a potential conflict of interest on a file, as the opposing party’s partner was her ex-boyfriend. The Respondent asked the student for details about the nature of the relationship, asking when she was last in touch with him, and what was said. … The Respondent asked the student detailed questions about their sexual relationship: “how many times was it?” and “where was it?” Subsequent conversations were held regarding the conflict of interest issue between the student and the Respondent, and jokes were made about it in the office. The paralegal was present for the initial conversation. The other paralegal overheard a conversation between the student and the Respondent regarding the conflict of interest issue as well. Both the other paralegal (for whom this was her last day of employment) and the paralegal viewed the conversation as inappropriate.
4. In late May 2014, the student wore a white shirt to the office that revealed her dark bra. Over top she wore a blazer. While performing office cleaning, the student removed her blazer before the arrival of the Respondent. Upon his arrival, the Respondent commented on her shirt, stating that clients should not see her like that even though he appreciated it. JE and the paralegal were both present when the Respondent made this comment to the student.
5. On June 3, 2014, the Respondent took the student to lunch at the Union Club. The Respondent told the student in a joking manner that he would not make her use the back door. The student responded by asking him what he meant. He responded, explaining the back door was the “ladies’ entrance.” The student responded, stating that she was not sure whether she should be offended or take his statement as a compliment. The Respondent then added that the ladies’ entrance was historically the entrance for prostitutes, or words to that effect. During their lunch, the Respondent also asked the student about why she was single. The student clarified that she was not single. On several occasions the Respondent stated in their conversation that “oh, well I hear you’re single now,” and the student would repeat that she was not. The student found the lunch awkward.
6. On June 6, 2014, in the course of their meeting for her one-month review, the Respondent commented in a joking manner that he was disappointed the student had not shown more cleavage that week. The Respondent had discussed her revealing cleavage with her a few times. He does not recall that particular statement of June 6, but does not deny it.
7. On or about June 8, 2014, the Respondent complimented the student’s dress and said she could really pull off dresses and then said jokingly that she could “pull it off” was inappropriate. He then corrected himself and said “you wear it well.” The paralegal recalled this incident. The Respondent has no recollection of this particular conversation, but does not deny it. He did compliment the student about her dresses and acknowledges it is the type of “joke” he would tell.
8. On or about June 12, 2014, the student called the Respondent at home late in the morning on an urgent file matter. He answered “I was napping. This is not how I imagined you waking me up.”
9. On or about June 17, 2014, the Respondent asked the student to type her name into his computer keyboard in a blog she had written. As she was bending over to type, he said she was “his favourite.” He touched her lower back with his hand. He then joked it was assault. The paralegal was present and witnessed the touching, and she joked it was battery.
10. On June 18, 2014, the Respondent was talking to the paralegal in his office. As the student approached his door to ask a question, he looked at her and said to the student it was her job to turn him on and made reference to her employment contract as requiring that she do his bidding. She commented that was not part of her job description. The paralegal recalled the Respondent telling the student it was her job to turn him on. The Respondent does not recall the exchange but does not deny it occurred. It was the student’s job in the morning to turn on the computers.
11. On or about June 18, 2014, the Respondent commented on the student’s dress and said he liked it. The Respondent had come back from running and was in shorts himself. He then sang “who wears short skirts.” She told him that she got the dress because it was not short and was business appropriate, and he replied, saying she was more than welcome to wear shorter skirts.
12. On June 18, 2014, the student dropped a file fastener on the floor in the Respondent’s office. She recalls the Respondent joked that he had thrown it so that she would have to bend over. She told him she was not going to pick it up and went back to her desk. The paralegal was present and recalled the Respondent’s comment that he had dropped the file fastener so that he could watch the student pick it up.
13. On June 19, 2014, the Respondent’s office received three emails about mail-order brides or something similar. The student made a comment about the emails, to the effect that “we keep getting these emails.” The Respondent responded to the student, saying that, if it was for hook-ups, he was totally happy to get the emails. The student believes she made a gross face and shook her head, to which he responded, “What? Don’t you think I’m a virile man?” She replied “no comment.” The Respondent does not remember the incident, but does not deny it occurred.
14. On June 25, 2014, the Respondent, who had a dentist appointment, made a joke to the student about “drooling” when he saw her.
15. At some time in the student’s employment with Butterfield Law, the Respondent asked the student while in a car driving from the office to downtown what her “ultimate limits” were. She felt awkward about the question and responded to the effect of anything illegal, such as drinking and driving.
The attorney showed greater self-awareness and contrition
The Respondent has gone beyond words. He has made changes in policy and physical changes in his office and completed sensitivity training and other self-education about his responsibilities as an employer. The impact on the complainant, who was made uncomfortable at work to the extent she felt vulnerable, depressed and timid, was significant, but more severe discipline will not enhance specific deterrence of the Respondent.
There is no prior decision of the Law Society of British Columbia on sexual harassment as professional misconduct. The reported decisions in other provinces where employees were sexually harassed have distinct factual circumstances and provide no additional guidance on a fair and reasonable disciplinary action. (Law Society of Alberta v. Plantje, 2007 LSA 22 (CanLII)Law Society of Manitoba v. Wiens, 2010 MBLS 3 (CanLII))
We find the proposed disciplinary action to be balanced, proportionate and consistent with the principles applied in determining a fair and reasonable sanction. We accept the proposed disciplinary action as within the range of fair and reasonable disciplinary action in all the circumstances.
Pursuant to Rule 5-8(2), to protect their interests, the Panel orders that information identifying the student and paralegal not be disclosed to the public.
(Mike Frisch)