‘Gone are the days of failing to investigate’: family eatery allowed unchecked sexual harassment

PEI Human Rights case illustrates consequences of not having a sexual harassment policy in place: investigator

‘Gone are the days of failing to investigate’: family eatery allowed unchecked sexual harassment

Management of a Smitty’s Family Restaurant in Charlottetown, PEI was found guilty of creating a toxic work environment for one employee who was subject to a range of sexual harassment offences from multiple male co-workers including management. Management of the restaurant claimed they were unaware of the harassment, a claim which the Human Rights Commission of Prince Edward Island (HRCPE) decided was not a valid defence.

The case, Milligan v, Maczak Holdings Ltd., outlines the consequences for employers who do not have sexual harassment policies in place, said Flora Vineberg, lawyer and workplace investigator with Rubin Thomlinson LLP.

“Gone are the days of failing to investigate serious allegations of sexual harassment or assault. And especially gone are the days of an employer pleading ignorance towards this kind of misconduct when there's proof or documentation or testimony that it's been reported,” Vineberg told HRD.

“This case illustrated the very serious issues that can occur and the very real cost consequences that can occur when an employer not only fails to investigate these types of serious allegations of sexual harm, but also when they lack a coherent and legally compliant harassment policy.”

No sexual harassment policy allowed ongoing harassment to occur

The claimant, a female server at Smitty’s, claimed that from October 2017 to January 2018, she was the victim of various sexual harassment incidents including sexual touching, sexual comments, derogatory language and sexual joking. The co-workers committing the offenses were all male and included some management.

The claimant also said she was subject to sexual harassment from a regular customer who would come in and expect hugs from all the wait staff. She claimed that while she was uncomfortable with this act, she also felt pressure to “socialize” with the regular customer.

She complained to management about these incidents repeatedly, but said they were unresponsive. Among other defences, Smitty’s claimed since there were no witnesses to corroborate the complaints, it was a case of “he-said, she-said.”

“Not only did they do nothing, they asserted that there was nothing more they could have done, if in fact they had been aware of what was transpiring. And that's not good enough anymore,” Vineberg said. “The bottom line is, whether you're a small or a large employer, to be legally compliant you have a duty to investigate. It's not just best practice. It's the law. And it's for the benefit of every workplace.”

Workplace sexual harassment still a rampant problem

In 2020 Statistics Canada (StatsCan) conducted the first Survey on Sexual Misconduct at Work, and found that in 2020 almost half (47%) of workers across Canada either witnessed or experienced, in the previous year alone, some form of inappropriate sexualized or discriminatory behavior at a workplace. One quarter of women (25%) said they had been personally targeted with sexualized behaviours in the workplace in the previous year.

In male-dominated industries such as trades, almost half (47%) of women reported experiencing sexual harassment at work in the previous year.

“Especially in a workplace context, there's so often a power imbalance,” said Vineberg. “This case highlights that, especially in the context of this complainant being expected to turn down a male patron who was requesting hugs – that putting the onus on a female server, in a precarious or unsafe work environment, to turn down a male patron is sort of the definition of sexual harassment within a power imbalance context. There's a male-female dynamic, there is a server-patron dynamic. And at the heart of it, there's a female employee who was dependent on her job and her wage to make a living.”

Benefits of having a sexual harassment policy in place

The HRCPE found in its analysis that Smitty’s management had demonstrated "lack of awareness of an employer's responsibility to their employees" and a "collective lack of experience, knowledge and ability to deal with harassing behaviour." Even if Smitty’s hadn’t understood the impact of the harassment, or known how to properly manage it, it was still responsible, the panel found, as “having no policy or training allowed sexual harassment to be normalized and become part of the work culture."

The claimant was awarded $15,000 in general damages, a number which is on the low end compared to some other outcomes in similar cases, Vineberg said. However, employers and HR need to be aware that these types of cases involving multiple incidents of harassment are on the rise, and ensure their harassment policies are updated and also enforced.

“The cost consequences can be real,” Vineberg said, citing recent Canadian sexual harassment cases that ended in upwards of $200,000 damages awards.

“If you're a small employer, you might feel those cost consequences acutely. There can be reputational harm if you are considered to be a workplace that allows this type of sexual harassment or misconduct to continue. Anything that can prevent the formation of a misogynistic work culture is a benefit. Anything that can ensure your employee safety is a benefit. But even something like having a sexual harassment policy in place, it shows employees you take your obligations for ensuring their safe work environment seriously.”

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