The British Columbia Human Rights Tribunal’s recent decision in McIntosh v. Metro Aluminum Products Ltd. and Zbigniew Augustynowicz, threw the book at the employer and its owner for sexual harassment committed by “sexting” – the sending of inappropriate text messages - to one of its employees, Ms. McIntosh.

Shortly after starting work at Metro Aluminum Products Ltd. as a driver, Ms. McIntosh entered into a consensual, sexual relationship with Metro’s owner, Zbigniew Augustynowicz. In the course of their relationship, the parties exchanged texts of a sexual nature, so-called “sexting”.

Several months later, Ms. McIntosh formally ended the relationship but Mr. Augustynowicz continued to send her inappropriate text messages such as “hi sexy”, “I need a nooner” and “now I know why you are single”. The messages got progressively more offensive. Despite ignoring the messages or responding by making it clear to him that such messages were unwelcome, Mr. Augustynowicz continued to send messages until Ms. McIntosh threatened to call the police.

In its decision, the Tribunal found that Ms. McIntosh had successfully established that she was subjected to sexual harassment in the course of her employment. Mr. Augustynowicz was clearly in a position of authority and responsible for the terms and conditions of Ms. McIntosh’s employment and for ensuring a workplace free of sexual harassment. He failed in this responsibility by repeatedly making sexual comments and propositions that were “offensive, inappropriate, and unlawful in an employment context.” As consenting adults, the parties were entitled to enter into a sexual relationship, however, once the relationship ended and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz knew, or ought to have known, that the text messages were unwelcome and were adversely impacting the work environment.

As a remedy, the Tribunal ordered that Metro and Mr. Augustynowicz cease all discriminatory conduct and a declaration that the conduct was discriminatory and contrary to the Human Rights Code (British Columbia). Ms. McIntosh was awarded $14,493.80 as compensation for lost wages, $2,900.85 as reimbursement for expenses incurred in pursuing her claim, and $12,500 as damages for injury to dignity, feelings and self-respect.

This case is yet another example of the impact that technology is having on the workplace and serves as a reminder that non-traditional communication tools (including those that are not typically or readily monitored such as social networking sites and text messages) can result in employer liability. To mitigate this risk, employers should ensure that they have appropriate safeguards and policies in place that are consistently updated and enforced.