Is a Complainant No Longer Required to Show that Conduct was “Objectively Unwelcome” to Substantiate a Claim of Sexual Harassment?
March 31, 2022
March 31, 2022
Previously printed in the LexisNexis Labour Notes Newsletter.
In the recent decision of Ms. K. v. Deep Creek Store and another, 2021 BCHRT 158, the BC Human Rights Tribunal (the “Tribunal”) declined to follow a long line of human rights case law which requires a complainant to show that conduct was “objectively unwelcome” to substantiate a claim of sexual harassment.
This decision represents a break from the established jurisprudence and should be of interest to employers faced with a claim of sexual harassment in the workplace.
The complainant worked as a clerk at a convenience store. She was 21 years old at the time she was hired. She alleged that her direct supervisor sexually harassed her in the workplace and then retaliated against her when she brought her human rights complaint.
In particular, the complainant alleged that her supervisor, who was in his mid-40s at the time and also the owner of the convenience store, offered her cash for sex and, when she declined, he made matters worse for her by creating a hostile work environment and then terminating her employment. After she filed her human rights complaint, he set out to harass and intimidate her by trespassing at her home in the middle of the night.
Decision of the Tribunal
In arriving at its determination that sexual harassment did indeed occur, the Tribunal applied the decision of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd.,  1 SCR 1252, which sets out the definition of sexual harassment. Sexual harassment is defined broadly 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 Tribunal noted that following Janzen, there have been a number of human rights decisions which indicate that in order to succeed in a sexual harassment claim, the complainant must prove that the sexual harassment was “objectively unwelcome”. In other words, the complainant must prove that a “reasonable person” would know the conduct to be unwelcome.
The Tribunal held that while it was required to find that the conduct was unwelcome, it was not bound to follow the Tribunal’s jurisprudence requiring the complainant to establish that the sexual harassment was unwanted in an “objective sense”. The Tribunal took issue with the additional onus which the Tribunal had historically placed on complainants and declined to hold the complainant to that onus in this case.
Citing UBC Professor Bethany Hastie, the Tribunal explained:
- Requiring a complainant to prove that sexual harassment was “unwelcome” to establish discrimination “invites scrutiny of the complainant’s own conduct and behaviour, creating space for problematic stereotypes and assumption-based reasoning …”
According to the Tribunal, a complainant can still prove that the conduct was unwelcome without any requirement to resort to the “objectively unwelcome” test by establishing that the conduct had an adverse impact on him or her.
The Tribunal set out its modified test for sexual harassment as follows:
- [T]o find sexual harassment contrary to the Code, the Tribunal must determine that the conduct is unwelcome or unwanted. The burden on the complainant is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender-based stereotypes and myths.
Applying this modified test to the facts of the case, the Tribunal had no difficulty finding that the employer’s treatment of the complainant had an adverse impact on her. The complainant experienced sexual harassment and a hostile work environment over a three-month period, and was then fired from her job. The impact on her was serious. In addition, the Tribunal found that the complainant’s supervisor retaliated against her when he trespassed at her place of residence to further intimidate and penalize her for filing a sexual harassment complaint against him and his store.
In making its award to remedy the situation of sexual harassment and retaliation, the Tribunal made an award of $45,000 – a significant award in BC – for compensation for injury to the complainant’s dignity, feelings and self-respect. The Tribunal also assessed damages for wage loss at $54,000, bringing the total award to just under $100,000. The Tribunal highlighted that the conduct was egregious because of the supervisor’s misuse of his power as the complainant’s older, male boss. The Tribunal also emphasized her vulnerability as a young woman and the serious impact of the misconduct on her.
Ms. K. v. Deep Creek Store and another represents a departure from past human rights case law, including many prior decisions of the BC Human Rights Tribunal. It remains to be seen whether this departure from the “objectively unwelcome” test represents a shift in the direction of the Tribunal and at least in British Columbia, or whether this decision is an isolated one which will not be followed.
This case also serves as an important reminder to employers that they should have policies in place to address sexual harassment and provide ongoing training on such policies. Failure to appropriately and adequately address allegations of sexual harassment in the workplace can lead to significant consequences, monetary and otherwise, for a business and its operations.
Gabrielle Berron-Styan is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP. She practises in all areas of employment, labour and workplace human rights law. She can be reached at firstname.lastname@example.org. For more information about Gabrielle and the rest of the Roper Greyell team, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.