The British Columbia Human Rights Tribunal's ruled in McIntosh v. Metro Aluminum Products Ltd., that an employer and its owner were liable for substantial damages because of unwanted sexually suggestive text messages, sometimes referred to as "sexting".
FACTS:
For a time after starting work at Metro, Ms. McIntosh participated in a consensual sexual relationship with Metro's owner, one Mr. Augustynowicz. In the course of their relationship, the parties exchanged sexually explicit texts.
Months after the claimant ended the relationship Mr. Augustynowicz continued to send inappropriate text messages. The messages became more offensive over time. Mr. Augustynowicz continued to send messages until eventually, Ms. McIntosh threatened to report the matter to the police.
ANALYSIS:
The Court's analysis is contained in the following paragraphs (referring to the BC Human Rights Code) from the reasons:
[99] Ms. McIntosh filed her complaint under s. 13 of the Code, which provides:
(1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of ... sex...
...
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
[100] The onus is on Ms. McIntosh to establish, on a balance of probabilities, that the Respondents, or any of them, discriminated against her on the basis of sex (sexual harassment).
[101] Sexual harassment is a form of sex discrimination: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252, [1989] S.C.J. No. 41 (Q.L.). The Supreme Court of Canada defines sexual harassment broadly as:
... 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.... (para. 56)
[102] The Court went on to quote with approval the following descriptions of sexual harassment:
...Sexual harassment is any sexually-oriented practice that endangers an individual's continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity...
...Harassment behaviour may manifest itself blatantly in forms such as leering, grabbing, and even sexual assault. More subtle forms of sexual harassment may include innuendos, and propositions for dates or sexual favours.... (para. 49)
[103] The Supreme Court of Canada also commented on the scope of circumstances that might constitute sexual harassment:
...Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee fail to comply with the demands. Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one. Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments, but where no tangible economic rewards are attached to involvement in the behaviour (para. 52).
[104] There is no dispute between the parties that there is sexual content in the various text messages. The issue is whether Mr. Augustynowicz's sexualized text messages were unwelcome.
[105] The test for determining whether conduct is unwelcome is an objective one: would a reasonable person, taking into account all the circumstances, know that the comments were unwelcome.
[106] In Mahmoodi v. University of British Columbia (1999), 36 C.H.R.R. D/8 (B.C.H.R.T.); petition for judicial review dismissed 2001 BCSC 1256 (CanLII), 2001 BCSC 1256, the Tribunal set out the following considerations when assessing whether conduct is unwelcome:
i) A complainant is not required to expressly object unless the respondent would reasonably have no reason to suspect it was unwelcome;
ii) Behaviour may be both tolerated and unwelcome;
iii) Not only overt, but also subtle indications of unwelcomeness may be sufficient to communicate that conduct is unwelcome; and
iv) The reasons for submitting to conduct may be closely related to the power differential between the parties and the implied understanding that lack of co-operation could result in some form of disadvantage. (paras. 140-141).
The Tribunal found that Ms. McIntosh had proven that she was subjected to sexual harassment in the workplace. Mr. Augustynowicz was in a position of authority and responsible for the terms and conditions of Ms. McIntosh's employment. He was the person responsible to maintain a workplace free of sexual harassment. He failed in this responsibility by repeatedly making sexual comments and propositions that were "offensive, inappropriate, and unlawful in an employment context."
While the Tribuanal stated that the parties were entitled to enter into a sexual relationship while working together, once the employee communicated that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. A knew, or ought to have known, that the text messages were not welcome and were impacting the work environment.
REMEDY:
The Tribunal:
- ordered Metro and Mr. Augustynowicz to cease all discriminatory conduct and
- granted a declaration that the conduct was discriminatory and contrary to the Human Rights Code (British Columbia).
- awarded the claimant:
- $14,493.80 as compensation for lost wages;
- $2,900.85 as reimbursement for expenses incurred in pursuing the claim, and
- $12,500 as damages for injury to dignity, feelings and self-respect.
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