Settling Human Rights Complaints – What Not To Do

January 2018

Article by: Julia Bell

When an employee makes a human rights complaint to the B.C. Human Rights Tribunal, the employee and the employer are permitted and even encouraged to settle such complaints. In some cases, complainants may agree to a settlement and then pursue the complaint anyway.  In these circumstances, the Tribunal retains jurisdiction to hear the complaint if it determines that it would further the purposes of the B.C. Human Rights Code to do so.  Such was the case in The Employee v. The Company and the Owner, 2017 BCHRT 266.

The Allegations

The Employee began working for The Company in May 2017, cleaning RVs. She was 24 years old, with a grade 11 education.  She was a single mother and this was her first job since the birth of her child.

The Owner was the president of the Company. He was 62 years old. The Employee also worked for “Mr. S”, who owned another business on the same lot.

The Employee alleged that in June 2017, the Owner sexually harassed her by making inappropriate comments, persistently offering her a massage, touching her leg and shoulder, and grabbing her waistband to look at her underwear.

The Employee says she attempted to return to work for one day but felt so uncomfortable due to the Owner repeatedly coming in and out of the RV she was cleaning that she did not return.

The Employee filed her human rights complaint on July 17, 2017, seeking an apology and compensation for lost wages and injury to her mental health (the “Complaint”).

The Settlement Agreement

Between August 9 – 17, the Employee and Mr. S were in contact regarding the Complaint, with Mr. S attempting to resolve the issue for the Owner. Mr. S offered the Employee $500 to resolve the allegations.  The Employee wanted more money as well as a promise of continuing employment.  Following further discussions, Mr. S increased the offer to $800, which the Employee accepted.  On August 28, the Owner and the Employee went to the bank so the Owner could withdraw the money.  While at the bank, the Owner presented the Employee with a settlement agreement which both parties signed.

The Employee has not returned to work for either Mr. S or the Owner following the settlement agreement.

The Tribunal’s Decision

The Company and the Owner applied to dismiss the Complaint on the basis of the settlement agreement under section 27(1)(d)(i) of the Code.  The Tribunal considered whether it would further the purposes of the Code to allow the Complaint to proceed, despite the settlement agreement and found that it did.

The Tribunal considered the policy reasons for holding individuals to agreements they have voluntarily entered into and noted that the Tribunal does encourage and assist parties in attempting to resolve complaints prior to the hearing process. However, in this case, there were a number of reasons why the Employee had established she should not be held to her bargain, including:

  • the serious nature of the sexual harassment allegations;
  • the unequal power dynamic between the parties, which was exacerbated by the vulnerable situation of the Employee at the time;
  • the Employee did not receive proper advice about the significance of signing the release and was not informed about possible remedies under the Code; and
  • the agreement was substantially unfair, as the damages the Tribunal would have awarded to the Employee, if she were successful in her complaint, were likely to be significantly greater than $800 and the agreement did not compensate the Employee for lost wages.

The combination of these factors convinced the Tribunal that the purposes of the Code would not be served by holding the parties to this bargain.  The Complaint was allowed to proceed.

Takeaways for Employers

Employers should be aware of the possibility that an inadequate settlement might not be enough to resolve a human rights complaint. In that regard, employers can protect themselves by taking the following steps:

  • Instead of negotiating independently with a complainant, consider proceeding through the Tribunal’s early settlement process, or involving a neutral party such as a mediator in the negotiations to avoid perpetuating an unequal power dynamic;
  • Advise the employee to seek independent legal advice to ensure the employee is aware of the potential remedies available under the Code; and
  • Seek legal advice on their own behalf in order to offer fair and realistic settlements.