When a Business Owner Sexually Harassed an Employee, His Company Paid

In Emslie v Doholoco Holdings Ltd., the Manitoba Human Rights Adjudication Panel concluded that the company’s owner sexually harassed an employee and the company was liable as the employer-for an award of $36,000.

Facts of the case

Traci Emslie, a 35-year-old single mother began working with Doholoco Holdings Ltd. in March 2009. Doholoco Holdings Ltd. operates retail stores in Winkler and Steinbach, Manitoba, which combine a franchise of The UPS Store with a Sears catalogue outlet. Doholoco employees work at both businesses. Douglas Homick is the President and sole director of Doholoco Holdings Ltd.

When the Winkler store manager left the company in 2010, Emslie began taking over more management functions. Emslie and Homick were often the only people working in the store.

Soon, Homick’s attitude toward Emslie changed; he began a stream of sexually tinged comments. Here are a few examples:

Mr. Homick would suggest that one of the UPS drivers wanted to sleep with the complainant [Emslie]. He might ask, “Do you need help going to the bathroom?” He would point to the underwear section of a catalogue and say, “These are going to be your new uniform.” When the wooden casing had to be removed from a fridge that was delivered to the Sears outlet he might say, “It’s time to get down on your hands and knees and screw.”

In other contexts, Mr. Homick’s remarks would simply be vulgar.

Although Emslie felt uncomfortable, she seldom objected to Homick’s constant stream of sexual references. She sometimes sent him text messages objecting to something he had said or done. Nevertheless Homick kept up with them.

Things soon escalated. One day in late 2010, Emslie’s shoulder started acting up while she was at work. Homick noticed that she was in pain and offered to massage her shoulder. She let him rub her shoulder through her clothing and she felt better. Afterward, Homick was constantly saying, “Do you need a backrub? Do you want a backrub? I think you need a backrub?” The Sears part of the store also had a display of mattresses and Homick kept suggesting that he pull a mattress down.

On Friday, February 11, 2011, at closing time, Homick pulled down a mattress and moved it to a storage area, out of public view. He told Emslie “See you on the bed.”

Emslie reluctantly walked over to the bed and sat down, obeying her boss. She informed Homick that she needed to pick up her daughter. Homick started rubbing her back. He also rubbed her feet and the inside of her thighs. He did not try to kiss her. She kept telling Homick that she had to go and he eventually let her go.

Emslie felt violated, ashamed and scared; however, she did not tell anyone else about the incident. She sent an email to Homick at the store email address which read, “Hey, I don’t mind you getting knots out of my back, but it needs to be a professional relationship.”

When next at work, the situation was awkward between Homick and Emslie. Homick made some vague remarks about being out of his mind and asked Emslie “not to send emails to the store email address because those emails went through a hub and he did not want other people to see them.” However, other even more grave incidents soon followed, including Homick stuffing business cards down Emslie’s bra.

These events caused Emslie a high degree of stress and she finally had had enough. By October 21, 2011, she went to see a doctor and was eventually told to take a stress leave until January 20, 2012. She delivered the doctor’s note on Homick’s desk on October 26, 2011, and never returned.

After leaving her job, she contacted the area supervisor of the UPS store franchise and complained. She also reported Homick to the police.

She finally told her partner about what was going on. After this point, she suffered from symptoms of stress including withdrawal, panic attacks and fear of leaving the house on her own. In fact, she has not worked since.

Emslie launched a human rights complaint against the employer and Homick, and argued that she was sexually harassed at work on several occasions. Doholoco Holdings Ltd. and Homick did not respond or appear at the hearing.

Decision

This case is based on the statutory definition of sexual harassment found in Section 19 of the Manitoba Human Rights Code, which reads:

Harassment

19(1) No person who is responsible for an activity or undertaking to which this Code applies shall

(a) harass any person who is participating in the activity or undertaking; or

(b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.

“Harassment” defined

19(2) In this section, “harassment” means

(a) a course of abusive and unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in subsection 9(2); or

(b) a series of objectionable and unwelcome sexual solicitations or advances; or

(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.

The evidence clearly showed that Homick, the directing mind of the company and in a position of authority over Emslie, made repeated sexual solicitations or advances and even touched her inappropriately, several times, without her consent.

It is established in law that a complainant in a sexual harassment case does not have to show that he or she objected to the act of harassment at the time that it occurred. The test is whether a reasonable person would realize the conduct was unwelcome. In this case, the conduct was objectionable on a number of occasions, and even though Emslie indicated this to Homick, she did not argue more forcefully because she was afraid of losing her job.

“Mr. Douglas Homick was in a position of power and repeatedly abused his power to degrade and humiliate the complainant [Emslie].

“Since the impact of the harassment on the woman was severe, Sim awarded her $15,000 in compensation for the injury to her dignity and self-respect. “The harm she suffered went beyond simple injured feelings and included anxiety, depression, flashbacks and panic attacks which continued for several years,” he wrote. He also noted that the complainant feared for her job and livelihood at the time of the harassment and was subjected to a constant stream of sexual innuendo as well as more egregious physical contact.

Emslie was entitled to damages for lost income because she was forced to leave the workplace due to the harassment, and it was necessary to consider all of the consequences of the contravention and the financial losses that flowed from them to the amount of $16,317.55.

Lastly, she was also entitled to exemplary damages in the amount of $5,000; this is a rare form of damages, but it was appropriate in this case as punishment for Homick’s malice and recklessness. As public interest orders, Doholoco Holdings Ltd. had to deliver to each of its employees a copy of the Manitoba Human Rights Commission policy on sexual harassment, as well as develop and implement a sexual harassment policy satisfactory to the commission in form and content, post a copy of the policy at each workplace it operated, and deliver a copy of the policy to each employee. Moreover, Homick was ordered to attend a workshop on sexual harassment in the workplace offered by the commission or some other party satisfactory to the commission.

What lessons can we take from this case?

The aim of a human rights award is to put a complainant in the position she or he would have been in, had she or he not been harassed. Thus, these types of claims can be very costly to the employer.

All employers can take from this case how critical it is to have human rights policies against workplace harassment and sexual harassment, as well as training on the policies and human rights rules.

It is also important to note during the training sessions that an employee who is being harassed does not have to express an objection to the acts of harassment at the time they occur. The test to prove harassment and sexual harassment has to do with what a reasonable person would view as unwelcome conduct.

The policies must be constantly enforced and should also include the disciplinary consequences of non-compliance.