Employer Harassed, Stalked and Threatened Employee Because of Sexual Orientation

In Graham v Shear Logic Hairstyling, an employee was awarded $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm she experienced due to discrimination in employment on the grounds of sex and sexual orientation, in addition to sexual harassment.

Facts of the case

Stephanie Graham was attending university on a full-time basis from 2003-05. She decided to obtain a trade and completed a Cosmetology course in 2007. In March 2007, she began working as a general hairstylist at Shear Logic Hairstyling, owned and operated by Shawn Cormier, to do the required training to become a general hairstylist.

According to Graham, she began to feel uncomfortable soon after she started working at Shear Logic. Cormier began making comments concerning her appearance and her sexuality. One day he noticed a tattoo on her wrist and asked her what it was. She stated it was two intertwining female symbols. She told him she was gay. He reacted by saying he was shocked and insisting that she could not be gay because she was pretty.

Cormier’s comments quickly escalated. Initially, she would ignore him or laugh. But the questions and comments became even more inappropriate and involved her sex life and sexual partners. Cormier even asked her, “How do lesbians have sex?”

In response, Graham indicated that she did not approve of the comments and questions.

These incidents started to interfere with work. For instance, Cormier would introduce Graham to clients and say she was a lesbian. This would cause Graham great discomfort and insult, but when she became upset, Cormier would explain to clients that it was a result of her being a “bipolar lesbian” or a “bitch.” Graham’s mental health suffered.

In another incident, Graham said Cormier tried to watch her while she used the salon’s tanning bed while nude. Cormier even drove by Graham’s residence and parked on the street in front of her house.

There were several other instances of name-calling and inappropriate comments, but Graham kept working because she needed to be an apprentice to get the qualification.

Then things got strange. Cormier called Graham at home one evening at approximately 9:30 p.m. He was slurring his words and and appeared to be intoxicated. He said he was calling to hear her voice and to say good evening. She advised him not to call in the evenings. Two evenings later, he called again. She reiterated she did not wish to receive any further telephone calls.

Then, on June 7, 2007, Cormier approached Graham and suggested they go to dinner the following Sunday to celebrate their three-month work anniversary. He told her that if she did not go, she would no longer have a position at Shear Logic. He continued to persist and she began to fear for her safety. Rather than flatly refusing to accede to his wish, she told him that she had to look for a new apartment that evening. Further, she advised she was uncertain of whether she would be at work the next day. He told her to call in the event she was unable to make it.

That evening at 6:00 p.m., Graham called the salon and left a message with an employee advising she would not be at work the next day. She was afraid that Cormier would be angry and ridicule her the next day, so she wanted to avoid being there.

Then at 9:00 p.m. that evening, Graham heard a “banging” on her apartment door. Her former partner and a female friend were present. Cormier entered the flat, proceeded down a long hallway and stopped at the kitchen where he began to scream at Graham.

Graham testified, “it was like I was breaking up with him, like he was an angered boyfriend and I was ending the relationship.” He continued to scream to the point where Graham had to tell him he was trespassing and that she would call the police if he did not leave. This was when he started shouting obscenities such as “crazy bipolar lesbian,” “crazy bitch,” and “stupid bitch.” He then fired her and told her to stay away from the salon.

A few days later, Graham went to collect her belongings at the salon, and Cormier began berating her and became aggressive. He would not let her take the potted plant because he paid for the pot, so he ripped it out of the pot and threw it at her.

On June 25, 2007 Graham filed a complaint with the Human Rights Commission.

Within the next month, Graham also filed a labour complaint alleging the employer owed her severance. The Nova Scotia Labour Standards Tribunal found she was terminated without cause and awarded her one week’s pay in the amount of $201.

According to Cormier, there was no inappropriate behaviour. He did not discriminate or harass Graham. He did not threaten to terminate Graham if she did not show up to the dinner; rather, he suggested that she bring her partner.

Decision

The decision of the board came seven years after the complaint was made-a significant delay. “There is no justifiable excuse for this inordinately long delay,” wrote board of inquiry chair Kenneth Crawford. However, Crawford said, since the commission appointed a new leader two years ago, there have been faster processing times.

Crawford found that Cormier discriminated against Graham on account of her sex and sexual orientation, and sexually harassed her during her employment at Shear Logic.

The effect of Cormier’s actions was significant. Crawford stated:

“It greatly dismays me to think how the Respondent could have treated a young lady, who was 22 years of age at the time with such anger, total disrespect and humiliation and also did so in the presence of clients. His abhorrent actions which occurred with great regularity took place one month after she advised she was gay.”

It was clear that Cormier wanted to start an intimate relationship with Graham and his infatuation soon became an obsession. This caused Graham to feel uncomfortable, humiliated, disgusted with herself that she remained employed for three months, upset because she felt she was being unfairly treated because she was gay, afraid of him and his sexual advances, and afraid to tell other people that she was gay because of their potential reactions.

Graham was a credible witness. On the other hand, the board did not believe Cormier “at all.” When there was conflicting evidence, the evidence of Graham was accepted.

Normally, the board would order the offender to apologize, but it was not appropriate in this case since Cormier had seven years to apologize but failed to do so. Given Cormier’s denial of wrongdoing, it was clear that he believed he did not do anything inappropriate. Also, a forced apology would not advance the cause of human rights.

Graham was not the one who created the seven-year delay. It was the process of the investigation or referral to the board that caused the problem. As a result, the matter could proceed. It was good news that the Human Rights Commission was heading in a new direction, aiming to reduce the time it took to deal with the complaint. This matter took seven years to reach the Board of Inquiry stage, and there was no justifiable excuse for the inordinately long delay given that the facts of the case were straightforward. The chair stated, “It is refreshing to know the ridiculously long delays at the Commission are now in the past.”

Consequently, Graham was awarded the sum of $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm. Furthermore, she was awarded pre-judgment interest at a rate of 2.5 percent for seven years.

What can we take from this case?

As can be seen from this case, adjudicators look to the credibility of the witnesses and sift through the entire body of evidence before rendering a decision. In rejecting Cormier’s evidence, Crawford stated:

“I found the Respondent’s evidence to be replete with contradictions, evasiveness, constantly forgetful … untruthful, nonchalant, uncaring and detached. He seemed to have had a plodding acquaintance with the truth.”

This is a case which can act as an example of how not to treat an employee. A manager, supervisor, owner of a business or co-worker cannot engage in sexualized comments or sexual harassment, or permit another employee to engage in such conduct. An employer may even be liable for harassment by a non-employee (such as a vendor or customer), depending on the circumstances.

In Nova Scotia, the term “sexual orientation” is listed in the Human Rights Act as a prohibited ground of discrimination but not defined; it includes homosexuality, bisexuality and heterosexuality. The Act makes it against the law to discriminate against someone or to harass them because of their sexual orientation or their same-sex partnership status. This means that a person cannot be treated unequally or subjected to harassment in employment because that person is gay, lesbian, heterosexual or bisexual. It is also illegal to discriminate because someone is in a same-sex relationship.

Harassment in this context is making a hurtful comment or action that is known or ought to be known to be unwelcome. Examples of situations that might be considered harassment include:

• Homophobic jokes or hints being made about a person’s sexual orientation or same-sex partnership status.
• The display of disrespectful signs, caricatures, cartoons or graffiti.

Harassment based on sexual orientation can consist of a single incident or several incidents over a period of time. Harassment can create a negative or hostile work environment which can interfere with an employee’s job performance and result in a person being refused a job, a promotion or a training opportunity. The employer must take action if it knows or ought to have known about inappropriate behaviour based on sexual orientation or same-sex partnership status.

Anti-harassment and anti-discrimination policies and training, including a complaint procedures are valuable tools in promoting equity and diversity within an organization. Adoption, implementation and promotion of these policies can help to limit potential harm, and reduce the organization’s liability in the event of a complaint. These policies should explicitly address discrimination based on all prohibited grounds under human rights legislation, including sexual orientation.

Employers also have a responsibility to maintain a workplace that is free of sexual harassment. Briefly stated, sexual harassment is an abuse of power based on sex/gender. It can involve a situation where the harasser offers work-related rewards to an employee as long as the employee complies with sexual demands. It can also involve repeated, unwelcome, harassing behaviour that creates an uncomfortable or hostile work environment. If employers allow sexual harassment to flourish in their workplace, they will pay a high price in poor employee morale, low productivity, and human rights complaints.

In Nova Scotia, the Human Rights Act states that “sexual harassment” means vexatious sexual conduct or discourse or comment that is known or ought reasonably to be known as unwelcome. A sexual solicitation or advance made to an individual by another individual where the other individual is in a position to confer a benefit on, or deny a benefit to, the individual to whom the solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome. It can also be the reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.

Employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment. One way to do that is to establish a clear sexual harassment prevention policy that is communicated to all employees and consistently enforced. That policy should:

• Define sexual harassment as stated in the law
• State that the employer will not tolerate sexual harassment and will take complaints seriously
• Set out clear procedures for filing sexual harassment complaints
• State that the employer will investigate fully any complaint that they receive
• State that wrongdoers will be disciplined up to the point of termination. Disciplinary measures should be proportional to the seriousness of the offense, and
• State that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation.

In addition, employers should train employees, supervisors and managers to teach employees about what sexual harassment is, explain that employees have the right to a workplace free of sexual harassment, the policy, review their complaint procedure, and encourage employees to use it. Supervisors and managers should have a separate training session that educates them about sexual harassment and explains how to deal with complaints and results of an investigation.

Employers should monitor their workplace and talk to their employees about the work environment to ensure they and their supervisors/managers know what is going on. Keep the lines of communication open. In addition, if someone complains about sexual harassment, act immediately to investigate the complaint.

The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.