Employer 'didn't understand what harassment was or how to actually respond to it': lawyer
A PEI restaurant must pay $15,000 to a former employee for workplace sexual harassment, although her layoff was not related to her complaint, the province’s Human Rights Commission has ruled.
The biggest misstep by the employer was not having a sexual harassment policy or any training for its employees, says Isabelle Keeler, an employment and labour lawyer at Cox and Palmer in Charlottetown.
“The employer’s response [to the worker’s harassment complaints] showed that it didn't understand what harassment was or how to actually respond to it,” says Keeler.
The worker was employed as a server at Smitty’s Family Restaurant in Charlottetown since 2002.
According to the worker, she was subjected to sexual harassment from the restaurant’s assistant manager and the kitchen manager, who were both also cooks in the kitchen, starting in April 2017. She also claimed that she witnessed incidents of sexual harassment of other female employees.
Sexual jokes and comments
The kitchen manager often told sexual jokes and made sexual comments to the worker, and he told her that he thought it was funny and he was trying to make people have a good day. However, the worker responded that he went “over the line.”
According to the worker, there was also regular talk that involved sexual comments and innuendo. On three occasions, the assistant manager rolled a piece of bacon, put it in his mouth, let it drop, and said “I’m ready for you.” He also put a sausage near his pants with his zipper down and told her to “jump on.”
The worker also alleged that on six different occasions from October to December 2017, the assistant manager followed her into a walk-in fridge or freezer, made inappropriate comments, and physically grabbed her, sometimes rubbing against her or hugging her.
The worker reported the incidents to the three owners of the restaurant, but nothing was done. She didn’t report every incident, as she believed that when the kitchen manager was there she didn’t need to report it.
After reporting an incident to one of the owners, the owner told the worker that since it was a “he said – she said” situation, there was nothing they could do. At other times she told the worker that she was free to leave and they had no one to cover for the assistant manager.
Off-duty allegations
The worker’s stepdaughter also worked at the restaurant as a cook and the worker saw her come out of the freezer upset one day. Another day, she heard the assistant manager call her a “slut,” and there was an allegation that the assistant manager sexually assaulted her stepdaughter while off duty.
The owners were aware of the off-duty incident, but they didn’t think they could do anything because it didn’t happen at work. The restaurant continued to schedule the worker’s stepdaughter and the assistant manager together, just not alone.
The restaurant’s response to learning of the off-duty sexual assault allegations was a significant misstep, according to Keeler.
“Employers seem to have the misconception that because something happened outside of the workplace, they can't address it,” she says. “Employers have the ability to discipline for off-duty conduct if it’s impacting the employer's legitimate business interests - if there is a situation with sexual harassment or sexual assault allegations, the employer should absolutely be investigating it to determine if it supports disciplinary action.”
Smitty’s had a regular customer who frequently asked for hugs from servers, which was unwelcome to the worker and other servers. However, they felt that there was pressure to comply and socialize with him when it wasn’t busy. A couple of other employees confirmed that the customer asked for hugs, but a couple of others didn’t recall.
“The customer that frequented this restaurant and would demand hugs from some of the staff, management was aware of this,” says Keeler. “This was sexual harassment and, again, the [commission] panel viewed this as illustrating that the owners did not understand sexual harassment or how to handle it.”
The worker and other employees confirmed that there was no sexual harassment policy or training.
Medical leave
The sexual harassment affected the worker’s mental and physical health, as it triggered issues and memories from the past. She had to take a medical leave of absence starting on Jan. 5, 2018.
The worker was medical cleared to return to work on April 9, but on the same day the restaurant laid her off based on a shortage of work. The worker filed a human rights complaint alleging that she was discriminated against in the area of employment on the ground of sex. She also alleged that she was fired because of her complaints.
The commission noted that sexual harassment has been recognized in case law as a form of discrimination based on sex. In addition, for there to be a finding of discrimination, the worker had to establish on the balance of probabilities that she experienced sexual harassment in the workplace, it said.
The commission found that some of the worker’s claims were confirmed by other witnesses. One of the owners also acknowledged that she knew about the situation with the worker’s stepdaughter and the assistant manager.
“Establishing a prima facie case of discrimination is on a balance of probabilities,” says Keeler. “So the [worker’s] compelling, specific, and detailed evidence about these incidents, versus some evidence that was challenging in terms of reliability and the evidence about the employer’s prior responses to other incidents, tipped the scales in the [worker’s] favour, at least in relation to her complaint that she was discriminated against in the workplace.”
Unwelcome conduct of a sexual nature
The commission determined that the worker established on a balance of probabilities that she experienced “unwelcome conduct of a sexual nature and included sexual touching on more than one occasion” which constituted sexual harassment.
The commission also found that it was clear that the restaurant’s owners didn’t understand sexual harassment or how to deal with it. They didn’t view the customer’s hug requests as potential sexual harassment, they thought that they couldn’t respond to the allegation of off-duty sexual harassment, and they thought that they couldn’t investigate a complaint because it was a “he said-she said” situation. These were all incorrect, the commission said.
Regardless of the owners’ mistaken beliefs, they were responsible for sexual harassment in their workplace, the commission said. Combined with the lack of policy and training, it was an environment that normalized sexual harassment and allowed it to continue, said the commission.
The commission determined that the worker’s sex was a characteristic protected under the PEI Human Rights Act and the sexual harassment she experienced was an adverse impact in her employment that was related to her protected characteristic. In addition, she had to go on a medical leave because of her mental health issues, which was a job-related consequence of the harassment, said the commission.
However, the commission did not find that the worker’s layoff was connected to the sexual harassment. Although the timing was suspicious, the restaurant provided multiple records of employment for the worker that showed she had similar layoffs in the past. In addition, the commission found that the nature of the restaurant industry often had staff working on and off for several years with the same employer, and the worker offered no evidence to prove the layoff was connected to the harassment.
Unsafe work environment
The commission noted that the sexual harassment and the restaurant’s lack of response to it negatively affected the worker’s mental health – although the worker’s past trauma exacerbated her issues. Still, the restaurant’s to maintain a safe work environment raised significant liability.
Smitty’s was ordered to pay the worker $15,000 in general damages for “mental anguish, humiliation, affront to dignity and/or emotional injury.” The restaurant was also ordered to provide the commission with a copy of a harassment policy and implement training for all staff within four months of the decision, with annual refresher training for three consecutive years.
“Typically, [PEI] general damages awards run in a range of $5,000 to a high end of about $40,000 to $50,000 for very serious, egregious things,” says Keeler. “This is certainly on the lower end, but the fact that the [commission] panel considered a case from BC for the general damages for injury to dignity awards range is interesting – that they’re starting to look to other jurisdictions that certainly points to a shift, but we're still not seeing those massive damages awards like you'd be seeing in Ontario, for example.”
Having a workplace sexual harassment policy and training employees on it, as the commission ordered Smitty’s to do, is essential for employers, adds Keeler.
“Employers in PEI are required, as of July 1, 2020, to have a harassment policy in place under the Occupational Health and Safety Act’s workplace harassment regulation,” she says. “But it's one thing to have a policy in place - to give meaning to the policy, there needs to be education and training to all staff.”
