Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 A BRITISH Columbia denture clinic must pay a former worker more than $38,000 for sexual harassment and discrimination she suffered at the hands of her boss. The worker was hired in October 2017 to be a receptionist for Esquimalt Denture Clinic, a small clinic in Esquimalt, B.C. that had only the denturist, an intern and the receptionist on staff. Soon after she began working at the clinic, the receptionist started having lunch with the denturist and the intern. They became more fa - miliar with each other and the denturist often paid for their lunches. By November, the denturist began comment- ing on the worker's appearance, saying her hair and outfits looked nice. The worker felt the comments were awkward, but she didn't say anything. In December, the denturist slapped the work - er's buttocks with a magazine while they were in the lab. According to the worker, the denturist laughed about it, but she was shocked and told him not to do it. He told her it was a joke, but then later said it was an accident. The intern left in February 2018, leaving just the denturist and the worker there. The two of them began talking about more personal top - ics and the denturist told the worker he wasn't happy in his marriage and wished to be single. The worker said she was getting married that summer. Sometimes, they spoke about sexual topics. That same month, there were three incidents in which the denturist touched the worker in - appropriately. In the first, he was helping her put an air compressor away when he pushed up against the back of her body. She backed away and told him not to do that. In the second, he pulled her onto his lap when she was trying on a set of scrubs and asked him how she looked. She stood up and said again not to do that. In the third, the worker was sitting down in the lab and saw the denturist looking down her shirt. She backed up, but he then grabbed her breast from the side. The worker got upset and told him not to do that, either. The denturist acknowledged touching the worker several times, but he said she sometimes didn't mind because she responded by smiling and giggling. In late February, the worker had a talk with the denturist after work to say she wasn't com - fortable and didn't like him touching her. The denturist apologized, blaming his behaviour on his failing marriage and saying that he would stop. Things went back to normal for about one month and the two became better friends. The denturist invited the worker to a denture con - ference, but she declined when she learned his wife wouldn't be coming. However, in late March, the denturist's be- haviour reverted. He kissed the back of the worker's head in the lab one day and on anoth- er occasion asked the worker if her breasts were fake because they were large. When she didn't respond, he tried to grab her breast, after which she got upset and told him to stop. She also told him that she wouldn't get sexually assaulted like this at another workplace, to which the dentur - ist replied that she would because she was so attractive. This behaviour led to "another big blow up" in which the worker again told the denturist she was feeling uncomfortable. The denturist again blamed his failed marriage and said he would stop. Things were fine again for a few weeks, but, in late April, the denturist was looking over the worker's shoulder and tried to put his hand down her shirt. She swatted his hand and told him not to start that again. He agreed to stop but said "please let me feel one last time." Later, he rubbed her leg while she was on the phone and whispered that her pants looked "really hot." She pushed his hand away and told him to stop. Two more incidents followed within a short time: The denturist pulled at the worker's pants to look down at her buttocks when helping her zip up the neckline of a bodysuit she was wear - ing and he rubbed her leg and reached for a kiss after smoking marijuana in the bathroom. Both times she told him to stop and pushed him away. On April 30, the denturist's wife watched sur - veillance footage from the clinic that recorded some of the incidents. She later called the work- er, who told her about the touching without her consent. On May 8, the denturist told the worker that his wife had told him he had to either fire her or end their marriage. The worker was upset and said she didn't want to lose her job. She texted the denturist's wife to try to change her mind and the wife agreed to let her stay until she found another job. That evening, the denturist told the worker by text that she had done nothing wrong. However, the next day, he told her that he had to fire her at his wife's order. The worker filed a complaint claiming sexual harassment and discrimination in the termination of her employment. The B.C. Human Rights Tribunal found that there was no doubt the denturist "engaged in a broad range of conduct of a sexual nature" at work. Although they may have discussed some sexual topics, this wasn't consent by the worker to move on to sexual touching. When the den - turist started touching her, the worker made it clear that it was unwanted, said the tribunal. "There was also a pattern of conduct of him touching her, her reacting negatively, her telling him to stop, him stopping for a period of time, and then him touching her again," said the tri - bunal. "The pattern of behaviour supports a rea- sonable inference that [the denturist] knew or reasonably ought to have known that his con- duct was unwelcome." The tribunal determined that the denturist's sexual conduct caused adverse consequences for the worker in her job. In addition, this con- duct led to the denturist's wife insisting that he terminate her employment. As a result, sex was a discriminatory factor in both the adverse con- sequences in the worker's employment and her termination. The clinic was ordered to pay the worker $25,000 in damages for injury to her dignity, feelings and self-respect plus compensation for lost wages as a result of the discriminatory termination for a total award of $38,408, not including interest. For more information, see: • Basic v. Esquimalt Denture Clinic and another, 2020 BCHRT 138 (B.C. Human Rights Trib.). Worker repeatedly told boss to stop touching her; worker suffered adverse treatment and termination because of her sex BY JEFFREY R. SMITH The denturist's behaviour stopped after the worker explained she was uncomfortable with it, but it soon resumed. B.C. worker's sex harassment complaint has bite ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com or visit www.employmentlawtoday.com for more information.

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