Winnipeg Free Press - PRINT EDITION

Historic win in sex-harassment case

Former employer held liable for actions of customer

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A 26-year-old woman has won a workplace sexual-harassment case -- the first in the province in which a business owner has been be held liable for the actions of a customer.

The woman's ex-employer now has 40 days to pay her $7,750 in damages and has been ordered to complete a workshop on harassment in the workplace within one year, a Manitoba Human Rights Commission adjudicator has ruled.

The ex-employer must also provide every new employee the business's policy on workplace harassment and train them in its meaning.

The adjudicator, Winnipeg lawyer Robert Dawson, said in an 11-page decision that although the award was higher than in past decisions, it was justified.

"It is just and appropriate to increase that sum further, taking into account the young age of the complainant in this case, the shocking and ongoing lewdness of the conduct and comments that she had to endure, and the special vulnerability of a young worker whose employer failed to protect her against the abhorrent inappropriateness of a middle-aged customer," Dawson said.

The woman said Thursday she was pleased with the decision as it clarifies that employers, from store owners to restaurant and nightclub operators, are responsible for the conduct of their customers toward their staff.

"I'm more happy that the law has been clarified rather than any amount of money I'm getting," the university student said.

"Business owners are responsible for protecting their employees even from customers."

She also said she hopes her case tells others that offending employers will be held accountable.

"Sexual harassment is serious and people have a right to stand up for themselves," she said.

During the hearing earlier this year, she was portrayed by her former employer as being on a personal crusade against him and was only after a cash windfall.

However, she testified that her boss took no steps to address the torment she suffered from a frequent customer, which involved a number of lurid sexual comments to her, including that she "would be fun to rape."

The Free Press is not naming either party for legal and privacy reasons.

The woman testified she repeatedly complained to her boss about the man's comments, but he failed to do anything meaningful to stop it.

When she filed a complaint against her employer to the commission for failing to take steps to prevent sexual harassment in her workplace under Sec. 19 of the human rights code, she was subsequently fired from her job of 17 months in May 2010.

The woman also testified that as a result of her complaint, she's had to legally change her name and has been the victim of a number of "vicious personal attacks, lies and slurs."

The customer testified at the hearing claiming he did not say anything inappropriate to the woman and he did not have any continuous contact with her. Dawson said in his decision he found the man's explanation improbable.

"His categorical statement seems implausible and it is contradicted by at least two other current or former employees," Dawson said.

"I think it likely that he would have persisted with his peculiar and offensive brand of so-called hilarity, either being unable to filter himself or deliberately choosing to provoke and annoy (the woman)."

Dawson also said he found the ex-boss took no action to curb the customer's behaviour despite the woman's complaints.

"In reply, the respondent suggested during cross-examination of (the woman) that it would have been easier for her simply to have quit the job instead of enduring (the customer). However, this insensitive approach undermines the very protection that the human rights code affords."

She had asked Dawson for $9,000 in general damages, four weeks of lost salary at $9.75 per hour for two shifts a week, and for her ex-boss to attend a seminar on sexual harassment in the workplace.

The ex-employer has 30 days to apply for a judicial review of Dawson's decision.

 

bruce.owen@freepress.mb.ca

Republished from the Winnipeg Free Press print edition April 26, 2013 A12

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