The BC Human Rights Tribunal recently dismissed a complaint of sexual harassment on the basis that the complainant had a history of engaging in lewd, sexual banter with her colleagues.
In Kafer v. Sleep Country Canada and another (No. 2), the complainant filed a human rights complaint against her employer following a series of highly sexualized comments directed towards her by her co-workers. The complainant alleged that these comments constituted sexual harassment. The employer filed an Application to Dismiss the complaint on a preliminary basis, noting that the complainant “actively and willingly participated and instigated the sexualized banter and conduct”. The employer argued that, given the complainant’s behaviour, “no reasonable person would conclude that she found the conduct in question unwelcome.”
The Human Rights Tribunal agreed with the employer and dismissed the complaint. The Supreme Court of Canada has defined 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 for determining whether conduct is unwelcome is an objective one, namely, taking into account all the circumstances, would a reasonable person know that the conduct in question was not welcomed by the complainant? In this case, there was extensive evidence supporting the employer’s assertion that the complainant had a history of fully participating in the crude workplace conduct and language. Accordingly, it was not reasonable for the complainant’s co-workers to know that conduct alleged in the complaint was no longer welcome by the complainant.
That being said, the Tribunal was clear that employers have a duty to provide employees with a harassment-free workplace. Accordingly, should an employee communicate that she no longer wishes to participate in sexual banter at the workplace, it would no longer be reasonable to assume that the she would welcome such banter.
This decision is important as it reiterates that the test for determining whether sexual harassment has occurred is objective, not subjective. Persons who willingly engage in questionable workplace conduct over a significant period of time cannot assume that their co-workers will know when formerly acceptable conduct crosses the line. For employers, however, the message is clear: there is a continuing obligation under both human rights and occupational health and safety legislation to ensure that the workplace is safe and free from harassment for all employees.