Modest awards for sexual harassment 'not going to cut it anymore' in Alberta, says lawyer
Human Rights Tribunal awards for sexual harassment could be getting bigger in Alberta, if a recent award is any indication.
On March 8, the tribunal ordered John Gursoy, CEO of TJ Construction and Management, to pay three former employees $230,000 in general damages and lost wages. The employees, three women who worked in the office, charged him with five complaints in total – three for discrimination based on gender and two for retaliation.
The retaliation charges come from counterclaims that he filed against all three employees claiming they were deliberately trying to harm his business and reputation.
‘Egregious’ case includes disability, gender-based discrimination
“We've been waiting for a larger award to come down the pipes, and this is really the first one where the Human Rights Tribunal determined that such a large award for general damages was warranted,” said employment lawyer Megan Kheong of MLT Aikins in Edmonton.
“What the case really – in my view as an employment lawyer – signals is that the Alberta Human Rights Tribunal is serious about the fact that their previous awards that we've seen over the last five, 10 years, in the realm of 15 to 25 thousand, they're not going to cut it anymore, especially for egregious cases like this one.”
According to tribunal member Karen Scott’s decision, Gursoy’s harassment of the women included inappropriate touching, sexist nicknames such as “baby girl” and “sugar baby” and “Mrs. Gursoy”. He also made comments about their appearance and about other female employees. The behaviour was constant and did not stop even when the women repeatedly asked him to stop.
“Alberta is – I hate to say it – kind of the Wild West, and it's had notoriously low awards; it's been pretty acknowledged for a fair amount of time that the awards in Alberta are much lower than other provinces,” said Kheong. “Of course, we're seeing more come forward as well because of the ‘#MeToo’ movement and that sort of thing. It's on everybody's minds, but certainly there’s been a movement amongst courts and tribunals to recognize it and to signal to employers ‘We take this seriously’.”
Higher sexual harassment award signals trend in Alberta
In addition to the sexual harassment, Gursoy also yelled at one complainant and ordered her to leave when he learned she had a physical limitation, as well as demanding to know what the limitation was. He also demoted one claimant from executive assistant to receptionist – including a pay cut – when she told him she was four months pregnant.
“This was a case where this sexual harassment was very apparent, it was not subtle by any means, it was repeated, and it was found to impact the complainants quite significantly … but it's not out of the realm of unusual in terms of what we see in sexual harassment [claims],” Leong said.
In the tribunal decision, Scott found that Gursoy discriminated against all three employees on the basis of their gender, violating section 7 of the Alberta Human Rights Act (AHRA).
She also agreed with the complainant who said he discriminated against her because of her physical limitation, also violating the AHRA.
Gursoy’s harassment of all three complainants was especially egregious and done openly – two incidents occurred during a job applicant’s second and third interviews. That individual testified that Gursoy’s actions were clearly unwelcome.
Human Rights Tribunal on higher awards for sexual harassment
In her decision, Scott wrote about the traditionally low awards for sexual harassment in tribunal panels and the need for higher ones.
“Sexual harassment in the workplace endangers its victim’s employment, affects their work performance, and undermines their sense of personal dignity. It is a barrier to equality in the workplace and must be discouraged and denounced,” Scott wrote, referencing preceding decisions including a 2022 award for $50,000 that was described by the tribunal at the time as “at the higher end of appropriateness when considering the subjective factors.”
“There is clear authority that an award of damages must be high enough to encourage respect for the legislative decision that certain kinds of discrimination are unacceptable in our society and should not be so low as to amount to a mere ‘license fee’ for continued discrimination,” another tribunal chair noted in an earlier decision.
Gursoy represented himself during the hearing and had to be removed from the hearing room at one point due to his “refusal to treat the complainants with civility and respect,” panel documents stated. These actions combined with damning witness statements, his own failure to provide any credible evidence, and the attempt to discredit them all contributed to Scott’s arrival at the unprecedentedly high award.
Sexual harassment policies
But the circumstances of this case do not take away from the larger issue of insufficiently low awards for sexual harassment-related damages in the province, the tribunal noted. Kheong said the financial incentive will be enough for some employers to look at their policies on sexual harassment, and if they don’t have one, they should.
“The risk of a human rights complaint is the same, it doesn't change because the potential quantum of the award goes up. But I think that it probably will have an impact on how HR professionals regulate their workplace, rather unfortunately,” said Kheong.
“Now, when we recognize that there's a significantly higher award, I think it probably will signal to some individuals, when they're weighing out the risks versus benefits, that it's in their best interest to make sure that they're investigating properly and fairly and addressing concerns, because if they don't, it could result in a much larger award against the organization.”
