Employer failed to stop harassment by customer

Winnipeg retailer ordered to pay $7,750 to worker who was harassed by regular customer

A Manitoba retail employer must pay an employee $7,750 for failing to curb harassment of the employee by a customer, the Manitoba Human Rights Commission has ruled.

Emily Garland was a retail clerk for Grape & Grain, a beer and wine making supplies store in Winnipeg. She was hired in January 2009.

Soon after Garland began working at the store, she reported that a regular customer began making sexual advances towards her, which she claimed she always rejected clearly. The harassment began as sexual comments about parts of her body and then escalated into questions about her sex life and asking to see her underwear. On one occasion, Garland claimed the customer touched her breast, and on another he rubbed his lower body against her while passing in a narrow aisle in the store. In late March 2009, the customer commented to Garland that he imagined raping her.

Garland complained to the owner of the store, Scott Tackaberry. Tackaberry met with the customer — with whom he was friendly — and cautioned him to keep his distance from Garland. He also asked another female co-worker about the customer.

The customer later testified that he hadn’t meant anything malicious and had only tried to joke with Garland, but not in a sexual way. He said Garland didn’t appreciate his jokes, so he stopped speaking to her whenever he came in the store. The customer also said he made “teasing and flirty” jokes to the other female employee in the store, who seemed to understand the spirit of the jokes.

However, Garland claimed the customer continued to sexually harass her and she told Tackaberry about it “once every four or five weeks.” Tackaberry claimed she said nothing to him, though a male employee testified he had repeated Garland’s concerns about the customer to him.

On May 8, 2010, Garland and Tackaberry had a loud argument. According to Garland, it was about her employer’s lack of action in dealing with the harassment. According to Tackaberry, it was about changes to the work schedule. Following the argument, Garland’s employment was terminated and she was given two weeks’ wages in lieu of notice. In October 2010, Garland filed a human rights complaint.

The commission didn’t hold much weight to the customer’s claims he merely joked with Garland, as he acknowledged he made teasing and flirty jokes with her co-worker, so it was likely he did so with Garland as well. Additionally, the commission found it unlikely the customer didn’t speak to Garland after her complaint to Tackaberry, since he was a regular and had to deal with her to make purchases.

Since the commission accepted Garland’s account along with the testimony of her co-workers, it found it was likely she reported the continued harassment and Tackaberry didn’t do anything further about it. It was also not possible Tackaberry might reasonably have thought his discussion with the customer had resolved the problem when he should have known the harassment was continuing. This violated the Manitoba Human Rights Code by failing to live up to the employer’s obligation to end harassment in the workplace, said the commission.

The commission ordered Tackaberry to pay Garland $7,500 for injury to dignity, feelings and self-respect and attend a workshop on harassment in the workplace. It denied Garland’s claim for an additional four weeks’ wages, as the two weeks’ wages she was paid was in accordance with employment standards legislation and there was no evidence she suffered any loss as a result of the termination. See Garland and Tackaberry, Re, 2013 CarswellMan 435 (Man. Human Rights Comm.).

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