Having moved to a new house and home office and having 'sort of' settled, I'm back to thinking about blogging again. First on my list was to tackle a decision that was kindly brought to my attention some time ago now by David Doorey over at Doorey's Workplace Law Blog. It's a decision that I think is worthy of talking about here because it illustrates how even human rights adjudicators can make things more complicated than they need to be. And that, unfortunately, just makes it more challenging for employers to figure out how to handle similar situations.
THE FACTS
Schmor v. Stonechurch Vineyards Inc. involves a female employee who alleged sexual harassment by another female employee and reprisal by her employer. Michele Schmor worked for Stonechurch Vineyards for a period of 4 months. She was hired on an as-neeeded basis but not on a fixed term. During that time, she alleged that Lisa Edlington, a co-worker and Director of Events for the company in question, called her "boobie girl" on four or five occasions in November 2006 in front of other employees and customers. The "boobie girl" reference stemmed from Schmor's disclosure to Edlington that she had sunbathed topless while on vacation (Edlington had queried whether she had sunbathed sans suit). Schmor found the comment to be embarassing and uncomfortable. Schmor further contended that on one occasion in December 2006, Edlington asked her to climb up a pole in front of the workplace to fix a sign and then "slide down like a stripper." Edlington also asked Schmor if she was wearing underwear. Schmor found these comments offensive.
At no time did Schmor raise a concern about Edlington's comments to Edlington directly or to anyone in management, feeling that Edlington had a close relationship with the company's president and so she had no one to go to. She did, however, discuss the comments with some co-workers. In mid-November, 2006, one of the co-workers spoke to the winery's owner about concerns she had with Edlington, including reference to the "boobie girl" comment. Evidence at the hearing showed that there was no indication the co-worker was speaking on behalf of Schmor or at Schmor's urging when she spoke to the owner. The co-worker, who had worked full-time for the winery for more than seven years was told to start looking for another job and was fired days later. Schmor continued working through December and January but by the end of January, her shifts were eliminated. On the other hand, the winery was hiring new employees to work in the store. Schmor subsequently exchanged e-mails with the company's president only to be told that she was not going to be called back, could pick up her record of employment and that he was not required to give her a reason for why she was not being retained. Schmor contended that her employer treated her in this manner because the company had found out about her concerns regarding Edlington's comments.
The company took the position that it had no idea Schmor was offended by any of Edlington's comments. In relation to her retaliation contention, the company argued that Schmor had only been hired as a temporary worker for the fall of 2006. The employer admitted that Edlington's daughter had been hired in early 2007 and did not deny that staff numbers had been expanded generally. Regarding the co-worker's firing, the company's president did not deny that she had been told to start looking for a job after complaining, in part, about the "boobie girl" comment but said that she was just being given fair warning about the company's need to trim staff.
THE DECISION
The adjudicator concluded that Edlington had made the remarks alleged by Schmor (Edlington was no longer employed by the company at the time of the hearing and did not attend to defend herself) given two other employees testified they had heard them. The adjudicator believed that Schmor was offended and embarrassed by the comments, particularly those made in front of customers and other employees. But, he ultimately determined that the remarks did not constitute sexual harassment under Ontario's Human Rights Code. And this is where the adjudicator starts to lose me.
He points out that the Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." [Just as a side note here, "vexatious" is essentially another word used in the harassment context to mean "unwelcome." In other words, a person finds another's comments or conduct to be demeaning, insulting or to cause discomfort]. The adjudicator goes on to conclude that:
- although Schmor never informed Edlington about her concern with the "boobie girl" comment, it was something that Edlington ought to have known was unwelcome to Schmor because it was stated in front of customers;
- there was no basis to conclude that Edlington ought to have known the "stripper pole" comment was unwelcome to Schmor since Schmor said nothing about it;
- given the overall context, while at least the "boobie girl" comment could be seen to be insulting and ought to have known by Edlington to be insulting to Schmor, that did not transform the comments into sexual harassment because:
"...while the remarks may refer to body parts and activities that in other contexts have sexual connotations, there is no suggestion that Ms. Edlington was making any sexual requests or suggestions. In fact, the evidence is that the "boobie girl" comment began as part of a friendly and innocent conversation about sunbathing. It was not a conversation about sex or a conversation that was related to either party's sexual interests."
Although concluding that the comments did not constitute sexual harassment, the adjudicator did find that reprisal had occurred because Schmor was sincerely offended by Edlington's comments and believed them to be a human rights issue and since the company had no reasonable explanation for terminating her employment. The adjudicator was of the view that Schmor's days were numbered once the company's management knew, through her co-worker (who also lost her job) was offended by Edlington's comments.
In the end, Schmor was awarded $2,340 in lost wages and $2,000 in general damages for the reprisal.
PROBLEMS WITH THE DECISION
Had the adjudicator concluded that Edlington's comments were inappropriate but not of sufficient frequency and severity to create a work environment that undermined Schmor's dignity, I might not have paid much attention to this decision. (I'm not, of course, saying I would have decided the case that way!) But, what caused me to pause was the feeling that for some reason the fact two women were involved here played a role in the adjudicator's reasoning, causing an unnecessary muddying of the waters. The focus here should be on whether the comments or jokes were directed at Schmor, inappropriately based on her sex and unwelcome. Why did there have to be an underlying tone to them that suggested Edlington had a sexual interest in her female co-worker? That's certainly not a requirement in situations involving male to female harassment. And, the section of the Ontario Code that deals with sexual solicitations or advances relates to persons in the workplace who are in a position of power. So, my supervisor can't, for example, say he'll give me a raise if I "scratch his back". But, although Edlington is identified in the decision as Director of Events, there is no other discussion of her role in the workplace to suggest she was in a position of power (another thing I would have liked to see explored more thoroughly). As a result, there was no need to examine whether Schmor's co-worker had a sexual interest in her in order to conclude harassment on the basis of sex was a possibility. It's unfortunate, in my view, that the adjudicator here seems to have imported these additional requirements in a situation involving alleged female to female harassment.
I also have difficulty with the adjudicator's view that Edlington ought to have known the "boobie girl" comment was unwelcome to Schmor because third parties -- customers -- were involved. While making the comment in front of customers certainly exacerbated the impact of those comments on Schmor, why would the comments be any more welcome if only said in front of other employees or just Schmor herself? And, why did the adjudicator discount the fact that Schmor began keeping her distance from Edlington after the "boobie girl" comment was made? Why was that not a sufficient sign of unwelcomeness? Now, I'm perfectly aware that not every detail of a hearing lands in the written reasons for decision but I just find that this case raises a lot more questions for me than it answers.
As for the conclusion on the reprisal, I have less of a problem with it but think that this decision imports a new twist in the law on reprisal than existed previously. The reprisal section in Ontario's legislation that applies to this case is section 8. That section would, for example, prohibit an employer from taking retaliatory action against any employee who "has a right to claim and enforce his or her rights" or "to institute and participate in proceedings" under Ontario's Code. In the usual situation, you have an employee who has made objection to behaviour in the workplace (either verbally or otherwise) or who has proceeded to contact the local human rights commission or who even files a complaint. In response, employer retaliates by disciplining or firing the employee (or threatening to). So, there is an established connection between the employee exercising his or her rights under the Code and the employer's negative reaction to the employee. In this situation, Schmor never vocalized her concerns about Edlington's comments either to Edlington or her superiors. Moreover, Schmor never asked the co-worker who eventually did complain about the "boobie girl" comment to company management to speak to management on her behalf. In addition, prior to losing her job Schmor had not taken any action under the Code against her employer. In effect, then, the adjudicator determined that the employee who was subjected to the inappropriate comments needed only to show she had a right to make a claim under the Code but did not have to be the one to take specific steps to enforce her rights under the Code for the reprisal section to be triggered when management ultimately decided to let her go.
WHAT TO TAKE FROM THIS CASE:
My general view about the Schmor decision is that employers should to be careful about placing too much emphasis on what the adjudicator said needed to be shown for harassment to be found under these circumstances. Instead, keep in mind the tried and true principles noted below. Time will tell how other adjudicators respond to what was said in Schmor and I'd recommend a wait-and-see approach on that front. Also, make sure you understand the law on reprisal. Here are my specific thoughts on what to take from this case:
1. Avoid adopting narrow definitions of sexual harassment or harassment based on sex in your workplace. Remember that harassment on the basis of sex is not necessarily sexual in nature. In other words, comments made about a person because they are a woman but which do not have as their basis a sexual solicitation or advance can still be found to be harassment under human rights legislation. (Repeatedly calling a woman a "fat cow" isn't sexual but sure as heck could still be sex harassment). And, don't get confused just because the people involved happen to be of the same sex. Comments that are made between people of the same sex do not require a sexual component to them for sexual harassment to be found. If inappropriate comments are being made and they are rude, crude and connected to a person's sex, put a stop to them. They have no place in the workplace.
2. Remember that reprisal is a separate and distinct form of discrimination under human rights law. This means that even if a complainant fails in their main complaint to a human rights commission (such as was the case here), an employer can still be found liable for retaliating against them for personally exercising their human rights or, as in this case, if someone else exercises those rights for them. What the adjudicator got right here is the notion that human rights statutes are intended to protect everyone who chooses to exercise their rights. And, the reference here is to the right to complain. Not the right to make a successful complaint.
3. If you find out about conduct in the workplace that even has a sniff of a human rights-related component to it, do not take adverse action against any employee who is complaining or may complain about that conduct unless you are prepared to prove that there is absolutely no connection between the action you take against that employee and the human rights issue. And, in terms of proof you want it to be clear and convincing so that no argument can be made that the human rights issue played any role in your decision (to terminate, discipline, give a bad performance appraisal, etc.). That's where the company here went wrong. It was a bad decision on the employer's part to fire Schmor without the ability to show no retaliation connection. That left the adjudicator an opening to infer a connection, find liability and render a damage award. Often, it is a far better approach to put the adverse action on hold until the human rights issue is resolved one way or the other and you can get your ducks-in-a-row to prove no reprisal.
There are far too many rules, laws, codes and policies for anyone to possibly keep in mind at all times. They are necessary for our protections for sure. But I think that employers need to take a higher road - one in which they hold themselves (key word) to a higher standard and in an easier format to remember.
At the heart of virtually all of these laws, codes, rules, etc. is respect. As long as employers promote respect, enforce respect, practice and model respect, I think the vast majority of problems can be averted.
Of the top 500 companies in North America, the majority of them are hugely successful and DON'T have fancy strategies. What they do have that sets them apart from the rest is an adherence to respect and respectful conversation.
With respect as a foundation, and proper conversational skills, I think all of these legalities can be significantly reduced.
There are many great books - but one that I found life changing in terms of respect and communication is Crucial Conversations. I would encourage anyone to look it up.
Posted by: Nuclearrain | July 28, 2009 at 09:11 AM