The HR Space is edited by Lyne Duhaime, Karen M.
Sargeant and Brian P. Smeenk.
Modern technology provides many new avenues for human rights
violations. As recently learned by the owner of Surrey-based Metro
Aluminum Products, sending sexually-related text messages or photos
electronically by mobile phones, also known as sexting, can get you
into trouble. Sexting is getting widespread attention in the media.
It's no longer just an issue amongst electronically
exhibitionistic teenagers and Brett Favre – it's now
a common issue in workplaces across Canada.
In the recent decision of McIntosh v. Metro Aluminum
Products, the British Columbia Human Rights Tribunal
determined that the owner sexually harassed a former female
employee by sending her sexually harassing text messages. Both the
owner and the Company were made jointly liable for
damages of approximately $30,000.
The complainant, Lisa McIntosh, was a 40 year old delivery
driver with Metro Aluminum Products. She began a consensual sexual
relationship with Metro's owner, Zbigniew Augustynowicz, which
she later ended. However, Mr. Augustynowicz continued to send Ms.
McIntosh repeated and unwanted sexualized text messages, containing
sexual propositions and references. The messages started out as
"Any horny girlfriends", "Can I date your
daughter", and "I need a nooner", and got
increasingly offensive over time. Mr. Augustynowicz continued to
send messages for several months, until Ms. McIntosh threatened to
call the police.
Ms. McIntosh argued that the text messages clearly constituted
unwelcome conduct. She described the text messages as so extreme in
content that any reasonable person would know or ought to have
known that such conduct was unwelcome and inappropriate,
particularly as she had repeatedly asked Mr. Augustynowicz to stop.
Finally, Ms. McIntosh argued that the text messages created a
sexualized work environment that she had to endure.
The Company did not deny that Mr. Augustynowicz sent the text
messages, but argued that the text messages did not constitute
sexual harassment or discrimination. The Company said that Ms.
McIntosh consented to, and participated in, all such
communications, and that she sent similar text messages to Mr.
The Tribunal agreed with Ms. McIntosh and said she was subjected
to repeated comments of a sexual nature that Mr. Augustynowicz
knew, or ought to have known, were unwelcome. The comments
detrimentally affected her work environment and led to adverse
job-related consequences, including her departure from Metro. The
Tribunal ordered payment of four months salary or $14,493.80 in
lost wages, $2,900 for expenses incurred, and $12,500 in damages
for injury to dignity, feelings and self respect.
In calculating the damages for injury to dignity, feelings and
self respect, the Tribunal noted that Ms. McIntosh was particularly
vulnerable given the power imbalance between her and Mr.
Augustynowicz, and her reliance on her employment to support
herself. The Tribunal also referred to the significant and ongoing
physical and emotional impact of the sexual harassment on Ms.
Need for Policies Very Clear
The Tribunal's decision highlights the impact of social
media and technology on employer liability in the workplace, as
well as the importance of clear policies on workplace harassment
and sexual harassment. In particular, the conduct of an employee
which leads to the departure of another employee can leave an
employer exposed to significant liability for lost wages. Employees
should be made aware of the risks involved in electronic and
non-work related communications with fellow employees.
To minimize liability, employers should create clear policies
regarding electronic communications and use of social media and
text messages that expand and incorporate their sexual harassment
workplace policies. These policies should be continually updated
and modified as new forms of communication and workplace harassment
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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