JB v. Esquimalt Denture Clinic 2020 BCHRT 138
Velletta Pedersen Christie represented an employee who was sexually harassed at work in a case before the British Columbia Human Rights Tribunal.
The harassment included comments of a sexual nature as well as physical touching. The employee was terminated from her employment after the Defendants wife saw some of the unwanted physical interactions on the surveillance system. The tribunal found that the employee was sexually harassed, and that the employee had been terminated contrary to the Human Rights Code.
The legal test applied by the courts and the tribunal as to what constitutes sexual harassment comes from the case Janzen v. Platy, 1989 CanLII 97 (SCC). Sexual harassment is defined as conduct of a sexual nature which is “unwelcome”. Determining whether conduct is “unwelcome” is determined on a “reasonable person” standard.
The tribunal in this case gave rigorous attention to what constitutes a “reasonable person” for the purpose of determining whether the alleged harassment is unwelcome. In particular, a reasonable person, according to the tribunal would assess the conduct without regard to unfounded stereotypes, writing as follows:
[104] I put the parties on judicial notice of three gender myths (common misconceptions) and stereotypes (oversimplified conceptions):
- First, lack of protest is a myth or stereotype that privileges those who expressly protest over those who are more likely to suffer in silence. The myth or stereotype — that “real victims” will protest immediately — may taint the unwelcome analysis by negatively impacting a complainant who is unable to present clear evidence of active protest in response to harassment.
- Second, non-reporting is a myth or stereotype that privileges those who resist and report immediately. The myth or stereotype – that “real victims” will report immediately – may taint the unwelcome analysis through assumptions of how women should respond to sexual violence and tendencies to blame women for the violence perpetrated against them.
- Third, participation in prior behaviour is a myth or stereotype that privileges those who do not have sexual experience. The myth or stereotype is that “promiscuous” or “party” individuals are more likely to consent or less worthy of belief. This may taint the unwelcome analysis by suggesting that past behaviour would mean that the respondent, or reasonable person, could not reasonably be expected to have known that the conduct was unwelcome.
Following that line of reasoning, the tribunal dispatched the Respondent’s claim that sexual harassment was not made out because the employee had tolerated the conduct in the past or participated in a “sexualized workplace”.
The employee was awarded $25,000 for injury to dignity feelings and self-respect, $11,796.04 for lost wages and further amounts for out of pocket expenses and interest..
The case was argued by W. Eric Pedersen.