A recent decision from the Alberta Human Rights Tribunal sends a clear message that Alberta employers could be liable for significant general damage awards for sexual harassment in the workplace. In Oliva, Pascoe, and Strong v Gursoy, 2024 AHRC 45, the Tribunal awarded over $230,000 to three former employees for discrimination and retaliation complaints. This total included the highest individual damage award to date in the Alberta human rights context ($75,000).
This case involved allegations of gender-based discrimination in the form of sexual harassment, as well as retaliation by the employer who filed lawsuits against the former employees after they brought their discrimination complaints. The complaints were initially advanced only against the corporate employer TJ Construction Management Ltd., however Mr. Gursoy was added as a defendant by the Tribunal after the company made an assignment into bankruptcy.
Gender-Based Discrimination
The Tribunal found that Mr. Gursoy had sexually harassed the complainants, which eventually led to the termination of their employment with the company. The alleged discriminatory conduct included, amongst other things, sexually suggestive nicknames, comments about personal appearance and clothing, and inappropriate touching of the complainants without their consent. Mr. Gursoy also demoted one complainant in response to her pregnancy and was found to have discriminated against another complainant due to physical disability by demanding details of a medical appointment. The Tribunal found that Mr. Gursoy's conduct was unwelcomed by the complainants and had a significant negative impact on them. It was deemed to be reprehensible, “shockingly inappropriate”, and deserving of strong denunciation.
Retaliation
The Tribunal also held that Mr. Gursoy had retaliated against the complainants in response to their discrimination complaints by filing civil claims against them. The Tribunal found that Mr. Gursoy's primary motivation in filing the civil claims was to intimidate the complainants and to discourage them from pursuing their discrimination complaints, in violation of the Alberta Human Rights Act.
Damages
The Tribunal emphasized that sexual harassment in the workplace was a barrier to equality that must be discouraged and denounced. This decision is a clear reminder that there is no ceiling on general damage awards and accordingly findings of discrimination (including gender-based discrimination and sexual harassment) and retaliation can result in significant liability. In addition to the general damage awards for breach of human rights and for retaliation, the Tribunal awarded the complainants amounts for lost wages and out of pocket expenses.
If faced with a human rights complaint, employers should seek legal advice as soon as possible. However, prevention is always preferable and employers should take steps to establish workplace policies and practices that prevent and address discrimination.
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