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11-Sep-2017 19:15

Or, the comments were made, but the evidence shows that the conduct was mutual, and Person B could not reasonably know her or his comments were unwelcome.

Or, a single event is complained of—Person B shows Person A a You Tube video of women swimming naked—yet the investigation concludes that this single event is not sufficiently severe (or, perhaps, sexual) to be considered sexual harassment.

Complaints investigators do this by gathering evidence relevant to the allegations and assessing this evidence against established standards of what constitutes sexual harassment.

These standards have evolved over the years through decisions of courts, human rights administrative tribunals, and arbitrators, and are informed by research and policy development. If the allegation has merit it will be substantiated by the evidence. In a few instances, a determination of “unable to substantiate” may apply, if the investigation has not been able to find evidence persuasive either way, often the result of a lack of any evidence (direct or similar fact) which might shed light on the matter.

It answers two questions: Did it (what is alleged) occur? The totality of the evidence must be assessed to determine whether specific behaviours constituted sexual harassment—or something else, such as interpersonal conflict, miscommunication, unprofessional behaviour, or potential criminal behaviour, such as sexual assault or criminal harassment (stalking).

Establishing the basis for a complaint, or defending against allegations, particularly if this entails proving a negative—that something did not happen when it is alleged it did—is often a difficult and lengthy process.While the onus is first on the complainant to make out a prima facie case (before the onus shifts to the alleged harasser to respond to the allegations), the prima facie case does not in itself create proof of substantiation.As noted earlier, whether the complaint has merit will be determined through a fact-finding process.A famous photograph illustrates this; conduct occurred, but does it constitute sexual harassment?

by Ruth Orkin is one of the best-known street photographs.

However, this “lie” (lack of full disclosure) does not necessarily mean his allegations of subsequent sexual harassment by the faculty member are false.

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