Employer liable for harassment

Nova Scotia bartender awarded more than $10,000 after being sexually harassed by co-worker, board also ordered employer to develop and implement a sexual harassment policy

A former part-time bartender was awarded more than $10,000 in lost wages and damages from her employer after she was sexually harassed by a co-worker.

Jan Slaunwhite, 26, was a part-time bartender at the Bay Landing Dining Room and Lounge in Prospect Bay, N.S. She worked Wednesday nights, every second Friday night, and by herself all day Sunday, averaging between 18 and 30 hours every two weeks.

She also visited as a customer two or three times per week. Tommy Duggan was a fellow bartender at the lounge. Slaunwhite, in testimony before a board of inquiry appointed under the Nova Scotia Human Rights Act, said Duggan was a friend of hers and they liked to joke with each other.

There was lots of sexual innuendo and she said she took it in stride and participated to a degree. She said Duggan would frequently joke about his penis, which he called “Mr. Wiggly.” She never complained to him about the behaviour and said other employees and managers at the lounge knew about these references.

On Nov. 5, 2000, Slaunwhite was closing the bar. Duggan had been there earlier in the day and had returned, both times as a customer. He had been assisting her while she counted cash, she testified, when he came up behind her, exposed himself and said, “Mr. Wiggly should be rolling around in those fives with you.” She cursed at him, he backed away and she continued counting the money. He then came up behind her and pulled her shirt up her back. Slaunwhite, who said she was scared at this point, exchanged words with Duggan. Shortly after he said he was sorry and again came up to her, grabbed her arms and said nobody had to know what had happened. She responded by saying, “Yes, don’t worry about it.”

The next day she sought out the lounge’s owner, Jamie Miles, and told him that, “Tommy came after her with his pants down.” She said she told Miles to do what he had to do and that she didn’t want to work with Duggan anymore. She said Duggan apologized to her again at a time when they were both customers at the bar and she told him not to worry about it.

Slaunwhite told her boyfriend about the incident in January 2001. Her boyfriend drove to the lounge and assaulted Duggan, who was working there that night. It resulted in Duggan losing his central vision in one eye. Slaunwhite worked once after the assault, but on the shift afterward said she felt like the public were all talking about her and looking at her. Slaunwhite said she told the dining room manager that she felt bad. The dining room manager told her she should feel bad. Slaunwhite never returned to work after that.

Duggan conceded the essential points of Slaunwhite’s testimony other than having lifted her shirt. He said that about a week later Miles told him he had made a mistake and that he should go apologize to Slaunwhite. Duggan was later charged with, and pleaded guilty to, sexually assaulting Slaunwhite. He received one year’s probation and a $500 fine. His employment was terminated shortly after.

The basic issue before the board was whether the evidence supported a finding that there were violations of the Human Rights Act and, if so, was Duggan solely responsible for them or was his employer partly responsible. The board ruled the incident of Nov. 5 did amount to sexual harassment. Duggan’s comment about “Mr. Wiggly rolling in the fives” was lewd, his exposing his penis was offensive and his lifting her clothes and physical contact with her inappropriate, it ruled.

Slaunwhite’s reaction to Duggan’s comment, his apology shortly afterwards, his admission days later to his boss that he was in the wrong and Duggan’s guilty plea and criminal conviction to sexual assault all demonstrate that he knew he had gone beyond all decent standards of behaviour. The board considered what, if any, responsibility for the incident the employer had. The law is well established that employers can be liable for the acts of its employees, particularly in sexual harassment cases.

The employer is held liable, even in the absence of knowledge of the offending behaviour, if the behaviour is found to be “in the course of or in respect to employment” of the offending party. Ultimately the board had to decide whether Duggan was acting “in respect of employment” to an extent the employer could be held liable for his conduct. The lounge argued that after the bar closed to the public, Duggan became Slaunwhite’s personal company and Bay Landing wasn’t responsible for what happened between them.

The board rejected this argument, noting that while they were friends, the friendship did not extend to outside the workplace and there was no personal relationship. It was also the accepted practice that off-duty staff socializing at the club would, when it closed, help with the closing procedures which could take up to an hour. Since the employer knew of and tacitly approved the practice, the employer is responsible for whatever happens in respect of it, ruled the board.

The board commented, further, that the employer in this case could have limited its liability had it reacted quickly and effectively to the harassment by instituting a scheme to remedy and prevent recurrence. The evidence as to what Miles knew is inconsistent, ruled the board, and was not enough to warrant a finding that he knew the full extent of the incident. But the board found that his reaction to what he did know about — the exposure and lewd language — was inadequate.

What he did know should have caused him to set up a meeting with Slaunwhite and Duggan to find out the details, it said. A meaningful investigation would have sent a message that improper conduct is not a harmless joke. Even something as simple as calling a staff meeting to discuss sexual harassment issues would have gone a long way in reducing the lounge’s exposure to damages in this case, it held.

The board awarded Slaunwhite general damages of $3,500 and lost wages of $6,760 (including $4,480 for tips), representing about 16 weeks of employment. The board also ordered that Bay Landing develop a sexual harassment policy within six months and implement it within two months of its development.

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