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Sexual Misconduct Investigations at Work

Lawyer Carley Reynolds explains how to navigate sexual misconduct allegations at work and offers advice and guidance for those who have been falsely accused.

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Carley Reynolds

November 20, 2023 12:00 PM

In the modern workplace, few allegations can cause as much damage to an individual’s life and reputation as a sexual misconduct allegation. This can be true even where the allegations are false. Being falsely accused of sexual assault or sexual harassment in the workplace has the potential to negatively impact virtually all aspects of an individual’s life. In addition to potential implications within the workplace, a false allegation of sexual misconduct can also have legal ramifications, both criminally and civilly.

Typically, when an employee makes an allegation of sexual misconduct against another employee, the employer will launch an investigation into the matter, sometimes hiring an independent investigator. The investigator is responsible for gathering information and interviewing the complainant, accused and any potential witnesses.

In recent years, some workplaces across Canada have begun to implement workplace harassment and misconduct policies to govern how these situations are handled. Many, however, continue to operate without a proactive policy. Where there is no proactive policy in place, there is a higher likelihood that the accused will be treated unfairly during the investigation process. In some cases, employers are too quick to believe the accuser. This can result in situations where the accused is not provided with pertinent details about the allegations against them, or where they are not provided with an adequate opportunity to respond to the allegations before a decision is made on the matter. This has the potential to result in the accused being unjustly terminated.

Another danger that may arise in workplace investigations of this nature is the lack of legal protection available to the accused party. Many of the protections offered to accused individuals in the criminal justice system do not apply in the context of a workplace investigation. When an individual is arrested and charged with sexual assault, they have many legal Charter protections, including the right to remain silent and the right to speak with legal counsel and to be notified of that right. Unfortunately, protections such as these do not extend to situations where the police or some other government entity is not involved. This means that when an individual is being investigated by their employer, they do not have any of these protections.

In these situations, people often feel compelled to participate in the investigation and to provide evidence or a statement, often without consulting a lawyer. Where an accused provides evidence to their employer during a workplace investigation and is later arrested for the allegations, the information provided during the workplace investigation may be provided to police to be used against the accused, thereby circumventing the protections provided by the Charter. This can complicate a case, even where the allegations against the accused have been fabricated.

As a result, there can be an uphill battle when defending sexual assault cases, even where the allegations are untrue. Since many sexual assault cases hinge on the statements of the parties alone, there is always room for fabrication. This can make providing any information dangerous for the accused, even where they are not guilty of anything.

Given these potential dangers, it is advisable for anyone accused of sexual misconduct to consult with a lawyer regarding potential legal implications. A criminal lawyer can assist you in understanding and protecting your rights in relation to a criminal proceeding or potential criminal proceeding. A civil sexual assault lawyer can assist in protecting the accused from various civil implications. Victims of sexual misconduct can sue their alleged assailant for large sums of money. Defending such a lawsuit can be time consuming and expensive, even where the allegations are fabricated. As a result, it is important to preserve all potentially relevant evidence that may be used later during litigation. A lawyer can assist in properly preserving evidence and in determining what evidence to preserve.

Carley Reynolds is a Toronto sexual assault lawyer at Donich Law Professional Corporation. Carley completed a dual JD program at the University of Windsor Faculty of Law and the University of Detroit Mercy School of Law, earning a law degree in both countries in 2019. She currently practices criminal, regulatory and quasi-criminal law in several jurisdictions across Ontario.

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