Tormented waitress awarded $12,000 (Legal view)

B.C. restaurant owner went through 58 waitresses in one year

A former waitress at a Vancouver restaurant has been awarded nearly $12,000 after her boss sexually harassed her and further tormented her after she quit and filed a complaint with the British Columbia Human Rights Tribunal.

Mary Clarke, 20, worked at Frenchies Montreal Smoked Meats Ltd. in the summer of 2005. She applied for the job at a new location in late June. During the initial interview, the restaurant’s owner, Michel Blais, 57, commented on what a pretty girl she was and asked her if she had a boyfriend. He also told Clarke she was “making him horny.” Though Clarke claimed this embarrassed her, she didn’t initially respond to his behaviour.

Clarke returned to the restaurant for a second interview. She characterized the interview as more of a 30- to 45-minute “personal conversation” in which Blais discussed her boyfriend and told her she should break up with him because she was a “goodie good virgin.” She noted Blais referred to his waitresses as “his girls.” She again didn’t respond to his comments from this meeting.

Clarke was hired and worked eight shifts at Frenchies between June 30 and July 21, 2005. During this time, Blais had several conversations with her. He suggested she quit her two other jobs and told her he would guarantee her full-time hours. Most of the time, Clarke still didn’t say much, except for once when she refused to quit one of her jobs because she received good hours there.

Blais also frequently asked Clarke when she was going to leave her boyfriend and commented on her physical appearance. He told her he was big “down there” and made “good love.” Clarke testified these remarks always made her “uncomfortable, scared and embarrassed,” but she would usually not respond.

On July 18, 2005, Blais asked Clarke to sit on his lap. She told him to get his wife to do it and walked away. Blais reacted angrily and after the incident behaved in an unfriendly fashion towards her. A few days later, Blais told Clarke her work had gotten sloppy, it “wasn’t working out” and to “go home and make love to your boyfriend.” Clarke said she felt ashamed, confused and her self-confidence was shaken. She filed a human rights complaint on Oct. 3, 2005.

In September 2005, Clarke began working in a pizzeria a few doors down from Frenchies. After Blais was served with the sexual harassment complaint in December 2005, he came into the pizzeria and started waving, pointing and smiling at her and “laughing hysterically,” according to Clarke. He returned a couple of days later and glared at her. Two months later, on Feb. 19, 2006, Blais came in again and asked another employee, “Where’s the girl?”

After the February visit, Clarke and her mother called the police. A week later, the police warned Blais not to go into the pizzeria. Blais became very angry and told the officers that women he had fired and the police were all out to get him.

A month later, Blais filed a complaint of his own with the police, claiming Clarke and the owner of the pizzeria were harassing and slandering him.

Clarke and Blais attended a settlement meeting, arranged by the human rights tribunal, in April 2006. Later the same day, as Clarke walked by Frenchies to go to work, Blais laughed and pointed at her. When she reported it, the police recommended she take an alternate route to work.

Blais had differing accounts of his conversations with Clarke, the interviews and his visits to the pizzeria. He claimed, when he fired her, he said he was sorry it didn’t work out and wished her good luck. He claimed he did not like firing people and it was the first time he had ever fired someone. Blais also testified he fired Clarke because she giggled too much at work and was not cleaning up properly. He said he had spoken to Clarke “three or four times” about her job performance. Clarke denied she had been given any warnings before her termination.

The tribunal preferred Clarke’s version of events over that of Blais. It noted, by his own testimony, Blais went through 58 waitresses in one year at Frenchies.

The tribunal noted his behaviour had significant effects on Clarke. She coloured and cut her hair, dressed down and said she didn’t want “to look that pretty.” She did not sleep well and clearly “felt anxious and scared for her safety.”

The tribunal ruled Blais abused his power and his conduct at the restaurant was sexual harassment. He created “a sexualized and oppressive environment” for Clarke at the restaurant and though she often didn’t respond because of her shyness, the tribunal felt Blais should have known his behaviour was inappropriate.

The tribunal found his allegation of sloppiness was not a legitimate reason for firing Clarke. Other waitresses had similar incidents without consequences, so it could only be inferred her termination was because Blais was embarrassed by her refusal of his inappropriate request to sit on his lap. The tribunal ruled his conduct was an abuse of his power and he sexually harassed Clarke while she worked at Frenchies. Her termination was a result of her negative reaction to the harassment.

The tribunal also found his visits to the pizzeria were meant to intimidate her. The tribunal also felt his police complaint was retaliation against Clarke. His actions after Clarke filed the initial sexual harassment complaint were aimed to “embarrass, humiliate and intimidate Ms. Clarke,” which the tribunal noted had that very effect.

The tribunal awarded Clark $318 for lost wages and tips for the period after she was fired until she was able to pick up more work. She was also awarded $4,000 for injury to her dignity at work. For the campaign of intimidation following the human rights complaint and the extreme effect it had on Clarke, the tribunal awarded $7,500 for further injury to dignity for a total of $11,818.

For more information see:

Clarke v. Frenchies Montreal Smoked Meats and Blais (No. 2), 2007 BCHRT 153 (B.C. Human Rights Trib.).

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information visit www.employmentlawtoday.com.

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