This article was revised to include the most recent provincial travel updates as of May 28th, 2020. While the term “unprecedented” is being used frequently in the context of the COVID-19 pandemic and the measures that have been taken in response to it, one context where the word can legitimately be applied is the restrictions […]read more
Employee’s Participation in Sexual Workplace Banter Results in Dismissal of Discrimination Complaint
The BC Human Rights Tribunal recently dismissed a sexual harassment complaint on the basis that the complainant historically participated in sexual banter occurring in the workplace.
In Kafer v. Sleep Country Canada and another (No. 2), 2013 BCHRT 289, the employee complained that her employer and a co-worker (the Respondents) discriminated against her on the basis of sexual orientation and sex (sexual harassment).
The Complainant alleged that her co-worker directed inappropriate and sexualized comments at her on three separate occasions. The issue in this case was that the Complainant admittedly participated in and often instigated sexual banter that was common at Sleep Country’s North Vancouver location. After engaging in such banter for more than a year, the Complainant became uncomfortable and reported her co-worker’s conduct to management. A disciplinary warning was issued to the co-worker and the Complainant eventually took stress leave. The human rights complaint was filed during her leave.
The employer filed an application to dismiss the complaint on the basis that the Complainant “actively and willingly participated and instigated the sexualized banter and conduct.” The employer argued that, given the history of the Complainant’s behaviour, “no reasonable person would conclude that she found the conduct in question unwelcome.”
The Application to Dismiss was granted – there was no reasonable prospect that the Complainant would succeed at a hearing. The Supreme Court of Canada defines sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.” The test is whether a reasonable person would know that the conduct in question was not welcomed by the complainant. After considering the totality of the evidence presented by the parties, the Tribunal concluded that the alleged conduct could not reasonably be seen as unwelcome.
The Tribunal made it clear, however, that a culture of crude and sexualized joking and conduct in a workplace is no defence against a sexual harassment complaint. The employer has a positive duty to provide a harassment-free workplace. Although Sleep Country failed to proactively discourage sexual workplace banter, it quickly addressed the Complainant’s concerns upon receiving her complaint. The Complainant was assured that her job awaited her upon return from stress leave, and she was offered a transfer to another store location.
Lesson for Employers:
Employers must act promptly when an employee complains of unwelcome conduct in the workplace. To prevent a human rights complaint or lawsuit, employers must be proactive in adopting (and enforcing) a sexual harassment policy, which includes the following components:
- Definition of prohibited harassing conduct;
- Statement that employees are entitled to a harassment-free workplace and that the employer will make every reasonable effort to accomplish same;
- Complaint process for employees to bring forth issues on a confidential basis; and,
- Disciplinary measures for violations of the policy.