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A recent decision of the Alberta Human Rights Commission takes a close look at the extent to which employers will need to address harassment to satisfy their obligations under the Alberta Human Rights Act (“Act”).
The case dealt with the harassment of an Edmonton teacher who was harassed for two years by a Grade 8 female student; falsely accused of sexual assault; and denied requests to have the student expelled.
The teacher, Vienna Malko-Monterrosa, specifically alleged that between November 2007 and April 2009, she received profane emails, sexually inappropriate Facebook messages and threatening notes from her student, and that her employer, the school board, did not adequately respond to these incidents when she made repeated complaints.
The school board argued that it did address Ms. Malko-Monterrosa’s complaints, and ultimately expelled the student in February 2009, and ordered her not to have further contact with Ms. Malko-Monterrosa.
Despite these actions, the harassment continued and in April 2009, Ms. Malko- Monterrosa received a note from the student which insulted Ms. Malko-Monterrosa’s ethnic background and sexuality. Ms. Malko-Monterrosa requested that the student be expelled but the school board suspended the student for five days, fearing that another expulsion may hurt the student.
In the meantime, the student also commenced a campaign against Ms. Malko-Monterrosa accusing her of sexual assault, even though this allegation was completely false. When Ms. Malko-Monterrosa approached the school board again to request that they protect her from harassment, she was advised to get a peace bond and seek legal assistance from the Alberta Teachers’ Union.
After several other incidents of harassment, the school board transferred the student to a different school district in June 2009, which brought an end to the harassment.
In determining whether the school board violated the Act, the Commission first confirmed that under the Act, employers have a duty to provide employees with a workplace free of discrimination and harassment from third parties who are not employees – i.e. in this case, the student. The Commission went on to state that in the circumstances, the school board (employer) was best positioned to take remedial action to remove the undesirable behaviour of the student. While the Commission held that the school board’s efforts were “for the most part reasonable”, it was clear from the persisting harassment that more could have been done. The Commission noted that the school board took a “piecemeal” approach to responding to the harassment, and in so doing was reactive to individual incidents rather than taking a more centralized approach to addressing the pattern of behaviour to which their employee was subjected.
As a result, the Commission concluded that the school board had breached the Act and discriminated against Ms. Malko-Monterrosa and awarded Ms. Malko-Monterrosa $7,500 for ‘harmful impact’.
This decision is instructive on two matters. First, it confirms just how far the duty to protect employees from harassment extends by including the behaviour of non-employees – i.e. customers/clients in the analysis. Second, the decision warns against reacting to incidents and/or imposing “band-aid” solutions. Instead employers are encouraged to respond to incidents in a proactive manner and with a view of eliminating the pattern of harassment in the future.
In this regard, employers may wish to conduct thorough investigations or audits of their workplaces to ensure they understand the roots of a particular complaint (or otherwise become aware of persistent issues) before contemplating their response.