Sexual Harassment in the Workplace is NOT Locker Room Talk – It’s Illegal
By: Michelle QuinnThe MeToo movement and the widespread media coverage reporting on incidents of allegations of sexual harassment and misconduct has placed the problem and extent of sexual harassment firmly in the spotlight. Given the heightened awareness regarding the prevalence of this issue, I decided to write an informative post about what constitutes sexual harassment, and how Canadian law prohibits sexual harassment in the workplace.
What is Sexual Harassment?
The case of Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252 is a leading Supreme Court of Canada decision on discrimination. The case defines sexual harassment as a form of discrimination:
Examples of Sexual Harassment
The Court also provided descriptions of sexual harassment:
…Sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity……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… (para.49).
What is the Law on Sexual Harassment in BC?
Section 13 of the BC Human Rights Code prohibits discrimination in employment on the basis of sex. The time limit for filing a complaint with BC Human Rights Tribunal (the “Tribunal”) is 6 months. The Tribunal is a specialized court.
Additionally, Section 5.1 of the Workers’ Compensation Act deals with harassment, which includes sexual harassment. WorksafeBC can provide compensation for a mental disorder caused by significant workplace stressors such as bullying or harassment.
Cases from the Tribunal
Below are summaries of two cases where the Tribunal found that the employees were sexually harassed while at work:
- Ratzlaff v. Marpaul Construction and another, 2010 BCHRT 13.
Ms. Ratzlaff filed a complaint alleging that she was sexually harassed in her employment with Marpaul Construction Limited (“Marpaul”), by its owner Albert Rondeau. Ms. Ratzlaff was employed by Marpaul as a heavy equipment operator. She had undertaken a three-year training course to operate heavy equipment, and Marpaul was her first employer following the completion of her training.
During her employment, Mr. Rondeau made a number of sexual comments directed at Ms. Ratzlaff. He told her how she made him feel and that he knew what she could do for him. He also grabbed her hand. On another occasion, he grabbed her buttocks and tried to hug her. He told her that he enjoyed sex with younger women. During a business trip away, Mr. Rondeau forced his way into her hotel room. He grabbed her throat and kissed her aggressively, forcing his tongue into her mouth.
The Tribunal found that Ms. Ratzlaff experienced unwelcome conduct of a sexual nature which detrimentally affected her work environment and led to her resignation from Marpaul.
The Tribunal awarded her $25,000 in damages for injury to dignity, feelings and self-respect. She was also awarded compensation for wage loss.
- PN v. FR and another (No.2), 2015 BCHRT 60
PN was a mother from the Philippines, she was hired through an agency to work for FR and MR as a housekeeper and caregiver. She worked for FR and MR in Hong Kong for about one year. Her employers moved to Canada and she accompanied them. For much of her employment, PN was the victim of ongoing sexual assault by FR and harassment, including assault by MR. She was only allowed to eat food with the permission of MR. She was not allowed to eat food in the fridge without permission. When MR was away, FR sexually assaulted PN. The assaults occurred about twice a week. She fled from her employers and found refuge in an institution for victims of human trafficking.
At the time of the events, PN was 28 years of age. The Tribunal found that PN was exploited and she was repeatedly harassed by PN.
The Tribunal awarded her $50,000 in damages for injury to dignity, feelings and self-respect. She was also awarded compensation for wage loss.
If you need advice about sexual harassment or harassment generally, and assistance with filing a complaint with the Tribunal please contact either myself or my colleague Nicole Mangan.
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The recent BC Supreme Court decision of Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881, is a reminder to terminated employees that they must take reasonable steps to find new employment. In this decision, the judge found that the terminated employee, Frances Okano, who had been with her employer for almost thirty-five years, did not take reasonable steps to secure a new job, and held that a reduction in the period of notice of three months was warranted for failing to mitigate.
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Sorry was really not the hardest word in the recent BC Human Rights decision of Duke v. Sobey’s, where the Tribunal found that Sobey’s apology and $250 gift card were a sufficient remedy to Ms. Duke’s discrimination complaint. The Tribunal found that proceeding with Ms. Duke’s complaint would not further the purposes of the Human Rights Code.
