A. INTRODUCTION
The British Columbia Human Rights Tribunal recently
released a decision dealing with sexual harassment and texting, McIntosh v
Metro Aluminum Products Ltd and Zbigniew Augustynowicz. Though this is a British Columbia decision, comparable Ontario legislation
suggests that this decision should serve as a warning to employers, including
that they could find themselves involved in human rights proceedings if they do
not have adequate policies and procedures in place to deal with sexual
harassment. This case, to be discussed in this Bulletin, underscores that
employers (including charities and not-for-profits) are well advised to develop
and implement sexual harassment policies and that both employers and employees
should understand what types of behaviours constitute sexual harassment. Failure
to take these steps could result, as it did in this complaint, in substantial
monetary awards to affected employees.
B. THE FACTS
The facts of this case reveal discriminatory conduct that
stemmed from a consensual sexual relationship that had ended. The complainant,
Lisa McIntosh, filed a complaint with the British Columbian Human Rights
Tribunal against Zbigniew Augustynowicz and Metro Aluminum Products Ltd for
discrimination on the basis of sex, which was in the form of sexual harassment.
McIntosh was an employee of the Augustynowicz, who owed Metro Aluminum
Products, and the two had engaged in a sexual relationship while she was his
employee. After several months, McIntosh ended the relationship and Augustynowicz
assured her that this would not affect her work for Metro Aluminum Products.
However, over the next three months, Augustynowicz sent
McIntosh several text messages of a sexual nature, including propositions,
demeaning language and sexually provocative comments. McIntosh told Augustynowicz
verbally and through text message that such communication was unwelcome. When Augustynowicz
continued to send sexual messages, McIntosh attempted to ignore Augustynowicz
but he continued to respond with further sexual messages. McIntosh then
pretended that she had entered into a new relationship in hopes that this would
stop the messages, but it did not. Finally, McIntosh threatened to report the
harassment to the police, and Augustynowicz finally stopped sending messages. As
a result of the ongoing sexual messages and a pre-existing medical condition,
McIntosh took a stress leave. She then extended her leave and eventually did
not return to work.
C. THE DECISION
In determining that this constituted discrimination, the
Tribunal first reiterated the long-standing rule that sexual harassment is a
form of sex discrimination. The Tribunal cited Janzen v. Platy Enterprises Ltd., where the Supreme Court explained that sexual harassment is:
… unwelcome conduct of a sexual nature
that detrimentally affects the work environment or leads to adverse job-related
consequences for the victims of harassment. It is…an abuse of power. When
sexual harassment occurs in the workplace, it is an abuse of both economic and
sexual power. Sexual harassment is a demeaning practice, one that constitutes a
profound affront to the dignity of the employees forced to endure it….
The Tribunal further explained that sexual harassment
might be blatant as in grabbing, leering and sexual assault, but it might also
be subtle and may include innuendos and propositions. Since, in this situation,
the sexual innuendo was overt, the only real issue to be determined was whether
the messages were unwelcome. Based on credibility and the evidentiary record,
the Tribunal found that the messages were indeed unwelcome.
The Tribunal found Augustynowicz sexually harassed
McIntosh largely because of the nature of the evidence that results from text
messaging. That is, the complainant did not have any difficulty in
demonstrating that there was communication of a sexual nature or that the
messages were demeaning, because they were all written down. Further,
there was a clear record that McIntosh had asked Augustynowicz to stop
sending sexual messages on several occasions, and that these requests were
followed by additional sexual messages. The Tribunal also determined that these
findings were unaffected by the multiple factors that the respondent attempted
to introduce in order to argue that the messages did not constitute sexual
harassment. Such factors included whether McIntosh opened or responded to the
text messages, whether she dressed provocatively, whether she was a “workplace
flirt”, or whether she had previously consented to sexual relations.
Finding that McIntosh was sexually harassed by Augustynowicz
and that she left her employment with Metro Aluminum Products Ltd. as a result,
the Tribunal ordered several remedies. The Tribunal ordered that Augustynowicz
cease the contravention of the Human Rights Code, declared that the conduct was
discriminatory, awarded McIntosh $14,493.80 for lost wages when she left her
position and awarded her $12,500 for injury to dignity, feelings and self
respect. Both Augustynowicz and Metro Aluminum Products Ltd. were held to be
jointly and severally liable for the award. Finally the Tribunal declined to
make an order that the employer implement a sexual harassment policy because no
evidence was introduced on the issue, but it strongly encouraged the employer
to do so of its own accord. Since the decision of the Tribunal, a petition has
been filed for judicial review with the British Columbia Supreme Court, however
the court has not yet made any decision on the matter.
D. CONCLUSION
Though the facts of this case are based on harassment via
technology, the lesson to be taken is much more far reaching. Employees and
employers need to be aware that sexual harassment is a form of discrimination
prohibited by human rights legislation, as well as occupational health and
safety legislation in some provinces, including Ontario. Further, employers can
be held liable for harassment by their employees, especially if the harassing
employee is in a position of authority. However, employers can also be held
liable if they learn of the harassment and do not properly respond to it. For
this reason, employers are well advised to have clear policies on sexual
harassment. In Ontario, as in this case, the Tribunal has the power to order
that an employer implement sexual harassment policies and procedures.