The Yukon Human Rights Board of Adjudication just found that a teenaged employee was sexually harassed by her employer with persistent unwelcome sexual conduct. This finding was underscored by the power imbalance, age difference and generational communication issues present. That said, the harassment was considered to be at the most mild end of the spectrum of sexual harassment.
Facts of the case
The teenager was a basketball player. Her coach was also the owner and operator of a sporting goods store. Eventually, the teen became an employee of the store and worked as a sales representative. This meant that her coach was now also her employer. Other basketball players on her team worked at the store as well.
The work environment at the store was very relaxed, friendly and casual. There were no formal schedules, dress codes or employee policies. Sales representatives provided customer service, store organization and stocking shelves with inventory from the storage rooms. The store owner assisted the employee with her homework and provided life advice.
Over the next few months there were several instances of questionable emails, texts and other interactions that made the employee feel uncomfortable. For example, the owner sent emails with pictures attached saying what the employee should wear for Hallowe’en, and the owner sent the employee a poem in French.
At the same time, the employee flirted as well. For example, the employee was overly attentive to the owner during a dinner and asked if he wanted dessert, removed her shirt and sat among her teammates wearing only a sports bra while the owner was in the room, and insisted that she be the one to respond to texts sent to both her and her co-captain of the team.
Subsequently, the content of the communications changed and became more physical in nature. For example the owner grabbed the employee’s hand while taping up boxes of stock, the employee showed the owner a scab on her back, and the owner sent a text to the employee saying that her underwear was showing.
The most questionable incidents occurred during a birthday party where the owner suggested that the girls model bikinis, and the employee put a bikini top on top of the owner’s shirt. Then, there was an incident where the owner put down the employee in front of her co-captain and then wrote an apology stating that he put her down because she held a special place for him and he didn’t want the co-captain to feel left out. The rest of the message stated, “She knows that when given a chance, I just want to be with you when we’re here. Sorry if that makes you feel under-appreciated or picked on. Didn’t little boys hit you when they liked you?” Also, the owner sent a text to the employee during work saying, “zip up hoodie or I’ll tell your dad.”
At one point, the employee talked to her boyfriend’s mother because she had prior experience with sexual assault. Ultimately, the employee sent the owner a text saying, “You crossed the line big-time.” She quit her job.
When a complaint to Basketball Yukon did not go very far, the employee chose the route of the Human Rights Commission. She made a complaint against both the owner and the employer sporting company that she was sexually harassed in employment.
In response, the owner argued that it was easy to take their communications out of context and misconstrue their meaning. He attempted to explain each message in the context of an existing friendship.
The board found the following.
The conduct was unwelcome. It was the employee’s perception of the relationship that was central. It was clear that the owner’s behaviour during the time period in question was unwelcome. Although she never communicated that the behaviour was unwelcome, her testimony was that she left her employment as a result of the behaviour. Further the owner felt compelled to text and email apologies; this could be interpreted as amplifying the correctness of the perception.
The conduct was sexual in nature. It was clear that email harassment could include sending personal and inappropriate messages or unwelcome remarks; a reasonable person would find the conduct to be sexual in nature in a variety of instances.
The persistence of the conduct was sufficient to find harassment. The owner’s intensive communications with the employee established of this fact.
The employee did not notify her employer of the harassment. The company did not have an opportunity to address the allegations of sexual harassment in the workplace.
There was a clear power imbalance. The power imbalance between the owner and employer on one hand, and the employee and athlete on the other hand was obvious and presented a challenge to the board.
There was a significant age differential. There was a 25-year gap between the owner (43 years old) and the employee (18 years old).
The young employee lacked the maturity to respond to the inappropriate conduct. The employee may have lacked the maturity to be able to discern the appropriate reaction to the owner’s inappropriate comments and overtures.
There was some physical contact. In one case the owner hit the employee’s butt with a shoe, and on other occasions he punched her arm, stroked her arm and grabbed her hand.
There were times when the employee was also flirtatious. The employee leaned back against the owner’s legs while sitting watching a basketball game, removed her team jersey and sat among her teammates wearing only a sports bra, and went over to the owners table and specifically asked him if he would like her to bring in some desert. The owner’s texts and emails showed a failure to recognize that the employee was an adolescent with an inherent immaturity in dealing with decisions related to relationships. It was more likely than not that the owner misinterpreted the actions of the employee and attached an inappropriate emotional link to those actions. There was no question that adults have to assume a greater share of the responsibility both legally and morally in their dealings with adolescents.
The owner should have known the conduct was unwelcome. The obviously affectionate emails and text messages stood out to an objective reader as indicators of sexual harassment in an employer-employee relationship.
There was an obvious generational gap on the evolving use of electronic means of social communication. The ability to pick up on social cues differs from person to person. It was difficult for the board to make a determination on the evidence without accepting inference testimony that the parties communicated back and forth with each other, and knowing there were substantial gaps in the continuity, volume and substance of the emails and texts. There was also an incomplete record of the texts and emails.
The board concluded that there were sufficient indicators of unwelcome, sexual and persistent conduct in the owner’s and employee’s interactions. This finding was underscored by the power imbalance, age difference and generational communication issues present. However, the harassment was considered to be at the most mild end of the spectrum of sexual harassment.
With respect to the actual sporting goods company named in the complaint, there was a lack of notification to the company and limited submissions on the culpability of the corporation; thus, the board made no finding against the company.
In terms of the owner, it was clear that the hearing had negatively impacted him. The board decided that a formal finding of discrimination was the necessary and sufficient act to serve not only as a punitive consequence to the owner but also as a cautionary example to other Yukon community organizations and businesses.
What can employers take from this case?
From the perspective of an employer, it is very important to have company policies that prohibit harassment and harassing behaviours in the workplace, including sexual harassment. In light of this case, a special portion of the policy should address topics such as the imbalance of power, electronic harassment and dealing with young workers.
In order to prevent the harassment from occurring in the first place, it is important to train all people in the workplace on the policy and consistently enforce the policy.
Christina Catenacci LLB
First Reference Human Resources Compliance Editor