Employer avoids liability for harassing texts sent by rogue
In an interesting decision, the Human Rights Tribunal of Ontario
has ruled that an employer is not liable for discriminatory and
harassing texts sent by a rogue employee to another of its
In Baker v. Twiggs Coffee Roaster, Tamra Baker
commenced a human rights application against her former employer,
Twiggs Coffee Roaster, alleging that her pregnancy was a factor in
the decision to terminate her employment. In support of her
application, Baker relied on a series of text messages that she
received from her friend and coworker, Cara VanDerMark in which
VanDerMark advised Baker that the owner of the coffee shop had
found out that Baker was pregnant and didn't believe that she
could do her job as she became "bigger". Of course, this
was all news to the coffee shop's owner, who had instructed
VanDerMark to call Baker and let her know that she was not needed
for her scheduled shift; the owner intended to terminate
Baker's employment later that day for performance reasons.
Following a two-day hearing, the Tribunal ruled that there was
no evidence to suggest that the employer knew that Baker was
pregnant at the time that her employment was terminated. As a
result, there was no breach of the Human Rights Code. Based on the
evidence, the Tribunal concluded that VanDerMark had mistakenly
thought that it would be less upsetting to her friend to think that
her employment was terminated because of her pregnancy instead of
her job performance, so she lied.
However, because VanDerMark's text message could arguably
constitute sexual harassment, the Tribunal considered whether the
employer should be held vicariously liable for her behaviour.
Ultimately the Tribunal recognized that under the Human Rights
Code, a corporation cannot be held vicariously liable for the acts
of its employees, agents or officers when it comes to sexual
harassment unless the employer was aware of the behaviour and
failed to take reasonable steps to correct it. Given that the
employer was unaware of the co-worker's texts, it could not be
vicariously liable for these actions.
This case is a good reminder for everyone – employers and
employees – to think before they click send on any text or
e-mail message. As this case demonstrates, trouble may be only one
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