C DEFINING SEXUAL HARASSMENT

C DEFINING SEXUAL HARASSMENT

Fundamental Definition

The classic test to be met by the successful applicant in a workplace sexual harassment complaint is to show: ¹

1. An employment relationship; and

2. Conduct which was unwelcome, when assessed objectively; which

3. Emanated from an employee or agent of the employer;

4. Or from the directing mind of the legal entity which was the employer ²;

5. The harassment was connected to the workplace, and

6. The offensive conduct was due to the sex of the victim

Wide Open Field

It is well known that the remedy is not one uniquely available to females. Any gender may make a complaint as the facts may allow.

While many cases are indeed initiated by women, men certainly may be the subject of harassment³. Essentially, the field is wide open. Harassment remedies will apply to any permutation of gender mix imaginable. The mission is to keep the workplace free of sexual harassment of any genre.

The Ontario Code, by example, provides protection from harassment due to “sexual orientation, gender identity, gender expression”. ⁴There is no need, however, for each statute to contain such a protective definition.

The “key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim”, “because of sex” which “captures the concepts of gender, sexuality, and sexual categories, as well as sexual characteristics, and therefore includes sexually-related discrimination and harassment”. ⁵It may be recalled that the seminal decision came from a statute which prohibited adverse treatment due to gender. ⁶

Similarly the victim need not prove that he or she truly had the sexual orientation which was the subject of the bullying taunts. ⁷The complaint in one case had asserted that he was the subject of homophobic bullying commentary, although he did not identify himself to be homosexual. The tribunal stated that this issue was not relevant, as all was required to be proven was the homophobic slurs directed towards him.

In any event, whether or not the name-calling was intended to hurt is irrelevant, since it is the effect of the conduct, or action, not the intent of the harassers, that is relevant in determining whether discrimination has occurred⁸. The correct interpretative approach is to avoid a “strict grammatical approach” and apply a broad liberal interpretation.

Unwelcome Conduct

An essential component of the test of conduct which may be said to sexual harassment is that the conduct must be unwelcome. This does not place the obligation upon the victim to state that this is so. The test is whether a reasonable person would see that the conduct was unwelcome ⁹, that is the questioned conduct was known to be unwelcome or reasonably expected to be unwelcome. ¹⁰

The issue of the inherent power imbalance in a workplace environment is often considered an issue in the analysis of this issue.¹¹

No Need for Timely Complaint

Frequently the complaint from the victim is not uttered contemporaneously with the event. Many courts have noted that the reason for this is because the accuser often may be in a vulnerable position and reluctant to speak out against her aggressor.¹²

Recognition has been given to the other means that the victim often shows their discomfort to the offensive action, including “nervous laughter, silence, or avoidance of the harasser”.¹³

Indeed, conduct which may be seen objectively as “acquiescence” may in fact be the victim’s means of avoiding an escalation.

The same observation was made in an Ontario decision, ¹⁴ confirming that the victim of abuse often suffers silently under the fear of losing her employment. The statement made by the offender that he considered his conduct was “welcomed” due to the lack of an immediate complaint has been found to be “incredulous” and far from the realities of sexual harassment. The Court noted that:

……recipients of harassing behaviour…oft times cannot immediately express how distasteful or offensive they find their treatment, because of fear of repercussions in the workplace, the ultimate fear that they will be terminated.

The judge was also very critical of the theory advanced that the victim must complain to create an obligation on management to act. This argument perpetuates the very problem that the law wishes to outlaw.

Higher Standard Upon Management

In a proper context, a co-worker may be able to assert that he believed his colleague had consented to such conduct as sexual banter and that hence the questioned conduct could not be reasonably seen as “unwelcome”. Such a defence is not available to management employees upon whom a higher standard is imposed to ensure the workplace is free of such inappropriate conduct. Such conduct goes to the issue of a poisoned work environment ¹⁵ and also personal liability of the management staff. ^{16 17}

Wide Range of Offensive Actions

There is an extensive range of conduct which can be found to constitute sexual harassment under the human rights codes and at common law. ¹⁸ The questioned conduct need not relate to a direct touching or a demand for sexual favours in exchange for promises of improved work benefits. ¹⁹ It may be subtle, obvious, verbal or nonverbal. It may be physical or psychological.²⁰ It may be found in “more subtle conduct such as gender based insults and taunting”, ²¹which may be objectively seen as conduct was creates a negative psychological and emotional work environment.

The Supreme Court of Canada summed it up best when it referenced the wide range of conduct which may be offensive:

…Harassment behaviour may manifest itself blatantly in forms such as leering, grabbing, and even sexual assault. More subtle forms of sexual harassment may include innuendos, and propositions for dates or sexual favours.

It is clear that one singular event may give rise to a finding of sexual harassment. A pattern of repeated behaviour is not required. A sexually explicit remark that is clearly demeaning will create a violation of the statute. Offensive comments ²² made on one unique occasion have been found to suffice to be a violation of the Ontario Code. ²³ Repeated conduct is not necessarily required if the offensive remark is “clearly demeaning”. ²⁴ Similarly, a finding that the wrongdoer had “flicked” the nipple of the complainant, ²⁵ or exposed himself to a co-worker, ²⁶ both cases on singular occasions, have been seen, naturally enough, as code violations.²⁷

The theory which drives these cases, namely that the offensive conduct must be shown to be that it is “known or ought reasonably to be known to be unwelcome” ²⁸ could allow for no other result. Such conduct is clearly offensive and should not be tolerated.

The Ontario Court of Appeal in considering the defence of the employer to a wrongful dismissal case based on the harassing conduct of the plaintiff, noted that a “wearing persistence” is not required to be shown to succeed in this defence. ²⁹

Change in Social Views

On this particular issue, the Court of Appeal overturned the trial judge on a point of law. More significantly, however, was the court’s observation that modern case law must reflect societal changes in attitude to this issue:

It is my conclusion that the trial judge demonstrates in his reasons a complete lack of appreciation of the modern concept of equality of the sexes. He uses such expressions as “she gave as good as she got” and “it takes two to tango”, both catch phrases from another era.

The same decision raised an important distinction in a case involving just case allegations to defend a wrongful dismissal claim. The question to be answered, the court stated, was whether the conduct was “nevertheless unwelcome”, even though consented to.

The issue arose in the context of an alleged consensual relationship between a management person and his subordinate employee. Presumably this means that in such a relationship, even though apparent conduct of the employee would reflect consent, it was behaviour which was tolerated as opposed to welcomed due to the position of economic dependency. This represented a fundamental distinction in the examination of a workplace “consensual” romantic relationship, given a power imbalance.

The Court stated that the responsibilities of a person as a manager require him or her to be mindful of the adverse consequences of his conduct as it may impact other employees and the workplace.

It is clear that the court was addressing the consensual romance as one which should be not allowed, given the potential impact on the specific employee and the workplace at large. This was a watershed decision on an important aspect of everyday employment life.

The definition of what conduct may be actionable sexual harassment becomes contextual, based on the issue between the parties. A single event of a comparatively minor nature may be actionable as a human rights complaint seeking monetary compensation only or a public interest remedy, yet will likely not support a constructive dismissal allegation or a poisoned work environment, ³⁰ using the vocabulary of the human rights process.

The offended party must be cautious as to how they respond to the conduct. An assertion that the wrongdoing is sufficiently grave to amount to a repudiation of the working relationship may ultimately be proven to be wrong, even though a code violation has been proven. Such a circumstance may find the victim having proven their case, yet unemployed with a modest compensatory award.

The result of such a decision by the victim, of course, would be much worse if civil proceedings had been commenced, given the adverse costs consequences, which are not present in a human rights complaint.

This standard is applied by a civil court in the determination of the very same issue in a civil context. Human rights violations, like all conduct which is the subject of scrutiny to determine a “fundamental breach” to support a constructive dismissal plea, must be examined to see if this test has been met.

Generally speaking, a single incident will not be sufficient to support a poisoned workplace. There may be an exception for outrageous conduct, but this remains the general rule. ³¹

Just Cause to Dismiss Offender

Just as there is an assessment of the severity of wrongdoing in a human rights complaint and in a civil action to determine the nature of the remedy available to the victim, the same analysis applies to assess whether there is just cause to allow for the summary termination of the wrongdoer in a wrongful dismissal action.

There is a graded scale of just cause in a sexual harassment case. This was noted by the Alberta Queen’s Bench: ³²

In assessing the seriousness of a particular instance of sexual harassment, it is necessary to develop a context. Clearly there is a scale or continuum of seriousness from the relative innocuous joke with a sexual connotation through groping and other conduct which is unmistakably sexual to acts of sexual violence. It seems to me that where impugned conduct falls on that continuum, would depend upon the circumstances in which the acts occurred or the words were spoken, the intent of the offender, the reaction of the victim, and the reaction of others who have seen or heard the offending behaviour.

The 1980 decision of the Board of Inquiry³³ was an early case, in the fact the first case, to consider a sexual harassment issue in employment in Ontario. ³⁴

The Board stated that there was a fine line between steps taken to eliminate sexual harassment and conduct which would at that time be considered acceptable social interaction. This led to the then famous, now infamous, quotation that “an invitation to dinner is not an invitation to a complaint”:

The prohibition against such conduct is not without its dangers. One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited, activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint. The danger or the evil that is to be avoided is coerced or compelled social contact where the employee’s refusal to participate may result in a loss of employment benefits.³⁵  Such coercion or compulsion may be overt or subtle but if any feature of employment becomes reasonably dependent on reciprocating a social relationship proffered by a member of management, then the overture becomes a condition of employment and may be considered to be discriminatory.

This decision would not follow today. The need for a finding of “coercion or compulsion” as “overt or subtle” marks the very reason why this is no longer a rule of law.

Early decisions also concluded that sexual references which were “crude or in bad taste” may not be to be a code violation in Ontario, ³⁶ and similarly that telling “sex jokes” would not be a code violation. ³⁷

The New Order

However, times change and what may have been considered permissible in 1982 will be viewed in a different context as these words are written.

In one case, ³⁸ the employer’s conduct in the telling of sexual jokes and also of conduct simulating sexual groping was found to be a violation of the Code resulting in a compensatory award of $3,000, as the definition of unwelcome was met. Both the joke and the sexual gesture were each determined to be violations of the Code.

The early case law must be read in the context of the era in which it was decided. One such decision noted an example of a positive comments made by a company representative of a female worker’s legs and stated that a woman who wore a mini-skirt to work “might well invite such comments” ³⁹ and further that a clear statement would be expected from her to advise that such comments were unwelcome, following which, a repetition of such a similar statement “could well cross the line”.

It is difficult to be believe that this could be an accurate statement of the law today. The passage reflecting this view is virtually comedic in today’s context:

For example, a comment about one’s legs might be returned with a gratitude for a perceived compliment, with repartee or with a clear statement that such comments are not acceptable to the individual involved. Subsequent comments in the face of the last response could well cross the line of harassment. Of course, much will depend on the circumstances. A businessman who wears shorts to work or a secretary who wears a mini-skirt might well invite such comments.

The same case considered a work environment in which words which would normally be considered offensive were apparently accepted and “enjoyed” by other employees. The Board noted that such conduct was the norm of the workplace and it was hence the duty of the offended employee to speak up and protest:

Where there is general acceptance but where an individual employee does not care to participate, that feeling should be expressly directly and unambiguously. The objective standard could then be applied to that individual in light of the additional fact ⁴⁰ of expressed disapproval.

This fact situation paralleled that before the Court of Appeal⁴¹ in which this court reversed the trial judge and dismissed the plaintiff’s wrongful dismissal action due to his failure as a manager to ensure a safe and proper work environment. The theory of an implied acceptance of an abusive work environment has no place in modern society.

The onus should not rest upon the recipient of the unwanted comments to reply in a manner to defend her self-respect. Such offensive conduct, simply put, should not be permitted:

No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct.

The significance of the case is not only its protective statement, but more importantly, the inherent and indeed, direct, acknowledgement that times do change. Today this passage be gender neutral and would read “no person”.

Such a finding today in a human rights context would readily lead to the employer’s failure to provide a proper working environment and a poisoned work environment. ⁴²

Reflecting much the same sentiment as was stated by the Court of Appeal, the Tribunal  ⁴³ spoke to the employer’s obligation to ensure a proper working environment:

While the complainant may be culpable for his own use of inappropriate language, this does not excuse or nullify Graham’s discriminatory misconduct towards the complainant. Nor does it excuse the failure of Lyons, Clark Menzies and the corporate respondent to take steps to address the existence of a poisoned work environment. The evidence established that the complainant was disgusted by, and protested, when Graham subjected him to crude remarks and exhibitionism. Based on this evidence, it is apparent that the respondents knew, or ought to have known, that Graham’s behaviour was unwelcome. Further, regardless of whether anyone objects to, or everyone participates in, sexually charged behaviour, the employer has a duty to take steps to ensure the workplace is free from vexatious comments or conduct;

The Tribunal’s decision continued to note the onus rests upon the employer to ensure this standard is met.

The prevailing theme of a new order was repeated in the decision of the Divisional Court ⁴⁴ in reviewing an arbitrator’s award under the terms of a collective agreement. The Court reversed the arbitral award of suspension and reinstatement and found that termination of employment was the appropriate remedy.

The decision spoke strongly of the employer’s need to provide a safe work environment, particularly with reference to the recent amendments to the Occupational Health and Safety Act. It is reflective of a more strict approach to conduct of sexual harassment in a modern work environment:

Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour.

The legislature has reinforced these obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace.

This issue of society’s changing view of what may be offensive conduct is an important consideration. Times indeed do change and court and tribunal decisions certainly reflect such shifting mores.

1. C.U.v Blencowe (Sanderson) HRTO
2. Required in Ontario only to show employer liability
3. Smith v Menzies (Chadha) HRTO
4. The decision of the Tribunal in Vanderputten v Seydaco (Wright) is an example of the application of the amended Code in interpreting the rights of a person undergoing gender transition.
5. Harriott v National Money Mart (Whyte) HRTO
6. Indeed, as the the B.C. statute still does.
7. British Columbia Court of Appeal in School District 44 v Jubran. The tribunal had found for the applicant which was reversed on first review. The Court of Appeal disagreed and restored the award of the Human Rights Board.
8. Ontario Human Rights Commission v. Simpson-Sears Ltd.
9. For example, as in the decision of the Manitoba Human Rights Adjudication Panel Emslie v Doholoco and that of the Nova Scotia Court of Appeal in NS Construction Safety Assn v NS Human Rights Commission; Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paragraphs 43-48; Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 (C.H.R.T.)
10. Often the language used in the statute to define “sexual harassment” or “harassment” is vexatious, which means without reasonable or probable cause or excuse; harassing; annoying as stated by the Federal Court of Appeal in Carroll v Canada
11. Federal Court of Appeal Payne v Bank of Montreal
12. Madam Justice Topolniski in the 2007 Alberta Queen’s Bench decision of Foerderer v Nova; Cuff v. Gypsy Restaurant (1987), 8 C.H.R.R. D/3972 (Ont. Bd. Inq.), at para. 31531
13. Foerderer, as above.
14. Mr. Justice Whitten in Fleming v Ricoh
15. Bannister v General Motors Ontario Court of Appeal
16. PEI Court of Appeal Griffin v City of Summerside
17. The issue of a “consensual” workplace romance, given an inequality in the employment relationship is discussed separately elsewhere.
18. The consequences which follow from the particular conduct will, however, reflect the gravity of the offensive conduct.
19. HTRO 2013 Vipond v BenWicks Pub and Doherty (Bhattacharjeethe)
20. As was stated in in Lavoie v Calabogie Peaks (Chapman) HRTO
21. Bell v. Ladas (1980), 1 C.H.R.R. D/155 (Ont. Bd. Inq)
22. such as “nice tits’ and “how’s your love life”
23. Gregory v Parkbridge Lifestyle Communities
24. ³⁴See Romano v. 1577118 Ontario Inc., 2008HRTO9(CanLII), 2008 HRTO 9, at paras. 64 to 69)
25. Murchie v JB Mongolian Grill (Hendriks)
26. ³⁶Such was also the conclusion of the Nova Scotia Board of Inquiry in Slaunwhite v Bay Landing Dining Room in which the respondent had exposed himself to the complainant
27. A similar single dramatic incident occurred in C.K. v H.S.
28. Watt v. Niagara (Regional Municipality) (1984), 5 C.H.R.R. D/ 4840 (Ont. Bd. of Inquiry)
29. Bannister v General Motors in which the Court of Appeal clearly rejected the test being that of “wearing persistence” to justify termination of a manager for just cause. It did, however, find that this manager’s misconduct was pervasive and repeated to female subordinates generally.
30. A good example of such a finding is the decision of the Tribunal in Shroff v Tipco (Muir) which it was determined that the complainant suffered abusive behaviour by co-workers who taunted him due to his inability to have a child with his spouse. This conduct was actionable as a complaint under the Code, yet not of sufficient substance to allow for the determination of a poisoned work environment.
31. Ontario Court of Appeal Johnson v General Motors. This is not a case of sexual harassment, but one alleging racial discrimination. The Court of Appeal overturned the trial judge on this issue.
32. From the 2013 decision of Clarke v Syncrude, upheld on appeal to the Alberta Court of Appeal in November of 2014.
33. referenced above, in Bell v Ladas (1980) 1 CHRR D/155 (Shime)
34. The legislation at the time, as was the case with the Manitoba statute referenced in Janzen, did not then specifically reference sexual harassment to be a violation of the Code and hence the complaint was based on gender. This is not material to the question under discussion.
35. Emphasis is from the original decision.
36. The decision of Professor Ratushny in Aragona v Elegant Lamp Company Ltd. and Fillipitto (1982) 3 CHRR D/1109 at p. D/110.
37. 1982 decision of the Board of Inquiry in Torres v Royal Kitchenware and Guercio (Cumming)
38. Law v Noonan (Sanderson) a Tribunal decision of March 2013.
39. In Aragona v Elegant Lamp (Ratushny) 3 CHRR D/1109
40. Emphasis added in original text.
41. The 1998 decision of Bannister v General Motors.
42. Much to the same effect is the 2013 decision of the Court of Queen’s Bench of Alberta in Clarke v Syncrude of Mr. Justice Macleod, which speaks to the changing view in society’s acceptance of such conduct: (upheld on appeal although this specific issue was not raised on appeal)
43. in Smith v Menzies Chrysler (Chadha)
44. in its May 2013 decision of Professional Institute of The Public Service of Canada v Communication, Energy and Paperworkers UnionInsert your note here.