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Wednesday, 13 November 2013

Sexual Harassment Awareness Series No. 8

Sexual Harassment Awareness Series No. 8 

Practical Tips in Creating A Safe Environment at Work

The global change in wireless communication (text messages, e-mail, whatsapp, tweets) has changed and expanded the manner in which we communicate in carrying out our work responsibilities.

However, this does not change the old workplace issue where employees are entitled to work in a safe environment of mutual respect, free of sexual harassment.

The case of  McIntosh v. Metro Aluminum Products Ltd., [2011] B.C.H.R.T. No. 34 (Marion) is a British Columbia Human Rights Tribunal decision illustrating this.

Lisa McIntosh filed a complaint against Metro Aluminum Products Ltd. (“Metro”) and Zbigniew Augustynowicz ("Mr. A"), alleging discrimination in employment based on sexual harassment. She said that she was subjected to ongoing sexual harassment through unwanted text messages from Mr. A which ultimately caused her to leave her position. Ms. McIntosh testified about a consensual sexual relationship with Mr. A and confirmed that the scope of her human rights complaint was limited to the allegation of sexual harassment based on repeated and unwelcome text messages containing sexually demeaning language as well as sexual comments and propositions after their sexual relationship ended. The Tribunal considered Ms. McIntosh’s admission of a prior consensual sexual relationship to have been relevant of whether, in all the circumstances, the text messages constituted sexual harassment.

The Tribunal after considering the evidence, held in her favour:

"[134] As consenting adults, Mr. A and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. A had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment. 

[135] After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. A knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. .........., and that her departure from Metro was due to the sexual harassment." 

Some practical tips gleaned from the Metro case: 
  1. Relationships of the kind Ms. McIntosh had with Mr. A are, as Tribunal Member Marion put it, “ill-advised”. Consider implementing a policy that requires disclosure of such relationships to the HR department. This will provide the employer with an opportunity to adjust the reporting relationship to avoid any conflict of interest or, at the very least, make clear to the employees in question that their relationship must not affect productivity, work quality or the work environment.
  2. Implement a comprehensive, enforceable anti-harassment and respectful workplace policy and, if such a policy is already in place, ensure that it is updated to capture all modes of communication, including wireless communication. Distribute the policy to all employees and make sure it is understood by them. Specify the disciplinary sanctions for breach of the policy and retaliation or reprisal. 
  3. Provide a safe mechanism for employees to report harassment. 
  4. Ensure that all harassment complaints are fairly and thoroughly investigated, regardless of who initiates the complaint and who is the subject of the complaint. 
If you have been the victim of sexual harassment, do not stay silent. Take action and contact the Kuala Lumpur Bar Committee or submit your complaint here.

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