Determining the validity of a complaint of workplace sexual harassment requires careful consideration of the facts and a balancing of social policy considerations. Sexual harassment as a form of discrimination based on sex is degrading, demeaning, and may have significant and negative effects upon the victim, particularly when there is a power imbalance between the complainant (employee) and the respondent (employer/supervisor).
Nonetheless, Human Rights Tribunals across Canada have struggled with balancing the need to enforce sexual harassment laws with the desire to avoid having them develop in a manner that unreasonably inhibits normal social conduct. In order to strike a balance between these competing priorities, Tribunals are sometimes willing to consider whether the behaviour complained of is normal social behaviour or whether the complainant contributed to the creation of an environment where such behaviour would be considered acceptable. Given the significant adverse effects of sexual harassment and the desire to avoid blaming victims, these factors are rarely dominant considerations, and when they do influence a decision, tend to mitigate damages rather than extinguish a complaint altogether. The British Columbia Human Rights Tribunal most recently engaged in this delicate balancing act in Kang v. Hill and another.2
Ms. Kang was hired on June 29, 2009 as Mr. Hill’s administrative assistant. Shortly into her employment, Mr. Hill confessed his feelings for her and gave her a list described by Ms. Kang as “incredibly intimate” and entitled “Reasons Why I Think You Love Me Too.” By the beginning of August, Ms. Kang had left her employment and filed a sexual harassment complaint with the BC Human Rights Tribunal.
Despite the respondent’s actions, the Tribunal found that Ms. Kang was unable to establish a prima facie case of discrimination. In doing so, the Tribunal focused largely on Ms. Kang’s conduct, in particular the fact that from the outset of her employment she routinely asked Mr. Hill increasingly personal questions about his marriage, sex life and his attraction to her. Her willingness to initiate and engage in such intimate conversations created a workplace environment where the respondent’s actions, although not considered ‘normal social interactions,’ were deemed acceptable.3
In light of Ms. Kang’s conduct, the Tribunal found that she had no real fear of adverse consequences to her employment. It was also held that the imbalance of power between probationary employees and supervisor/ employers was not a factor relevant to the determination of this case.4 Indeed, the Tribunal held that Mr. Hill’s confession of his attraction was not an assertion of power, but was an “acknowledgment of his weakness, which to some degree placed him under her power.”5 It will be interesting to see how the downplaying of the power imbalance will be treated by subsequent Tribunals as it is often one of the chief considerations in workplace sexual harassment cases.
Kang v Hill is significant in that it suggests that a sexually charged working environment created – or contributed to – by the complainant may, in some cases, provide a defence against allegations of sexual harassment, even where the respondent is the employee’s supervisor and the owner of the business. Nonetheless, the applicability of this case may be limited by its unique factual make-up. Had Mr. Hill’s conduct not been preceded by Ms. Kang’s behaviour, it is likely that his conduct would have constituted sexual harassment.6