A former worker at an Alberta pub has been awarded $35,000 by the province’s Human Rights Commission after it ruled she had been sexually harassed by her boss at work.
Jillianne Smith was hired by R Pub in 2011. Starting in July 2014, until the end of her employment in 2017, she said she was sexually harassed by its owner, Neil Popowich, “on an almost daily basis.”
According to Smith this included repeated sexual and romantic advances towards her at work; inappropriate physical contact; and explicit comments about her appearance. Her strategy, because she needed to keep her job, was to manage Popowich’s behaviour by keeping the friendship, but not accepting the sexual advances.
Things came to a head in November 2017 when the pair got into a physical altercation and Smith’s employment was terminated shortly after.
Popowich denied the allegations, and said he had a consensual relationship with Smith — including having sex on two occasions during the period in question. He pointed to the fact they would hang out outside of work, including going on bike rides and attending a wedding.
Lots of evidence
The commission waded through a lot of evidence alleging harassment, and some of the details are sordid. A sampling of allegations and incidents:
- On Aug. 6, 2017, Popowich asked her to join him in the liquor room. When she walked in, he was holding his privates and told her that he wanted to have sex with her.
- Popowich acknowledged asking where Smith was, who she was with and what she was doing – when she was not at work.
- Popowich admitted saying to her “You are looking good from this angle.” He also asked her to have sex after they came back from a wedding, and that he would misbehave when he drank too much.
Questions about nature of relationship
The Alberta Human Rights Commission said there were some interactions between Smith and Popowich that raised questions about the nature of their relationship. For example, text messages from June 25, 2016, read as follows:
Smith: And as far as the kids go. They won’t find us if we open a bar in [Belize] lol.
Popowich: I am sorry to bother you just had to vent. And I think you are right let’s go to Belize or Bahamas. I am in.
That type of banter might suggest the relationship was more than a mere friendship or professional relationship, it said. However, additional text messages from the same day read as follows:
Popowich: so r u Tell ur kids ur moving in 🙂
Smith: No fucking way
Power imbalance
But the commission also put the focus on a simple fact: There is a power imbalance in the relationship between employers and employees.
“Most times, employees depend on their employment for their livelihood,” it said. “In such cases, employers wield enormous power over the employees. As the employer in this case, (Popowich) had enormous power over (Smith).”
Someone in her position is often not willing to bring their employment to an abrupt end because of unwanted sexual advances, it said. Popowich probably knew this.
“If he did not, he ought to have known it,” it said.
Past encounters often irrelevant: Commission
The commission rejected Popowich’s claim that he had consensual sex with Smith, for a variety of reasons. It also pointed out that evidence of past sexual encounters may not be relevant to whether harassment occurred.
This type of thinking “contributes to a stereotype that once a woman says yes to sexual advances, she has no ability to deny further advances.”
It also pointed out that sexual harassment is more demeaning when the perpetrator has authority over the victim. Harassment is generally reported to the employer or to a person authorized by the employer to deal with complaints, it said.
“However, the situation of the employee will become more complicated where the employee’s boss is the perpetrator, as there might be nobody else to report the matter to,” it said. “Therefore, the victim should either live with the “demeaning practice” and continue with their job, no matter how untenable that might be for them, or they quit their job, if they cannot endure the discrimination any longer.”
Damages and training ordered
Once it concluded harassment had occurred, it turned its attention to the remedy.
The Director of the Alberta Human Rights Commission asked for $25,000 in damages. But the commission decided a higher amount was appropriate in this case — citing its facts and the current economic realities.
“In a society such as ours, nobody should be made to go through the ordeal of sexual harassment at their workplace, by the same person who has the responsibility of ensuring that the workplace is conducive for the employees,” it said.
It awarded $35,000 in general damages for injury to dignity. And it ordered Popowich, and anyone else in a management position at the pub, to undergo human rights training by March 30, 2023. The content of the training “shall include how to prevent sexual harassment in the workplace.”
For more information, see Smith v Popowich, 2022 AHRC 124 (CanLII).
