Modern technology provides many new avenues for human rights violations. As recently learned by the owner of Surrey-based Metro Aluminum Products, sending sexually-related text messages or photos electronically by mobile phones, also known as sexting, can get you into trouble. Sexting is getting widespread attention in the media. It's no longer just an issue amongst electronically exhibitionistic teenagers and Brett Favre – it's now a common issue in workplaces across Canada.

In the recent decision of McIntosh v. Metro Aluminum Products, the British Columbia Human Rights Tribunal determined that the owner sexually harassed a former female employee by sending her sexually harassing text messages. Both the owner and the Company were made jointly liable for damages of approximately $30,000.

Facts

The complainant, Lisa McIntosh, was a 40 year old delivery driver with Metro Aluminum Products. She began a consensual sexual relationship with Metro's owner, Zbigniew Augustynowicz, which she later ended. However, Mr. Augustynowicz continued to send Ms. McIntosh repeated and unwanted sexualized text messages, containing sexual propositions and references. The messages started out as "Any horny girlfriends", "Can I date your daughter", and "I need a nooner", and got increasingly offensive over time. Mr. Augustynowicz continued to send messages for several months, until Ms. McIntosh threatened to call the police.

Argument

Ms. McIntosh argued that the text messages clearly constituted unwelcome conduct. She described the text messages as so extreme in content that any reasonable person would know or ought to have known that such conduct was unwelcome and inappropriate, particularly as she had repeatedly asked Mr. Augustynowicz to stop. Finally, Ms. McIntosh argued that the text messages created a sexualized work environment that she had to endure.

The Company did not deny that Mr. Augustynowicz sent the text messages, but argued that the text messages did not constitute sexual harassment or discrimination. The Company said that Ms. McIntosh consented to, and participated in, all such communications, and that she sent similar text messages to Mr. Augustynowicz.

Decision

The Tribunal agreed with Ms. McIntosh and said she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome.  The comments detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. The Tribunal ordered payment of four months salary or $14,493.80 in lost wages, $2,900 for expenses incurred, and $12,500 in damages for injury to dignity, feelings and self respect.

In calculating the damages for injury to dignity, feelings and self respect, the Tribunal noted that Ms. McIntosh was particularly vulnerable given the power imbalance between her and Mr. Augustynowicz, and her reliance on her employment to support herself. The Tribunal also referred to the significant and ongoing physical and emotional impact of the sexual harassment on Ms. McIntosh.

Need for Policies Very Clear

The Tribunal's decision highlights the impact of social media and technology on employer liability in the workplace, as well as the importance of clear policies on workplace harassment and sexual harassment. In particular, the conduct of an employee which leads to the departure of another employee can leave an employer exposed to significant liability for lost wages. Employees should be made aware of the risks involved in electronic and non-work related communications with fellow employees.

To minimize liability, employers should create clear policies regarding electronic communications and use of social media and text messages that expand and incorporate their sexual harassment workplace policies. These policies should be continually updated and modified as new forms of communication and workplace harassment develop.