Protection from Patrons: Protecting Employees from Sexualization in the Workplace
Previously printed in the LexisNexis Labour Notes Newsletter.
Employers have a duty to protect employees from sexualization in the workplace by patrons and customers, even if that means removing or banning individuals with an alleged mental disability from their facilities or place of business.
The Complainant in Hammell v. Delta (District Municipality), 2017 BCHRT 246 (Pylypchuk) filed a complaint under the B.C. Human Rights Code (the “Code”) alleging discrimination by the Corporation of Delta (“Delta”) in the provision of a service or facility on the grounds of a mental disability. The Complainant was banned from using Delta’s recreational facilities following his request for a personal trainer.
In May 2016, the Complainant contacted Delta to arrange to work with a personal trainer in its recreational facilities and requested a specific female trainer. Staff informed the Complainant, who had been a patron of the facilities for years, that the trainer was unavailable and he had been assigned an experienced male trainer. The Complainant responded by e-mail, indicating he did not want a male trainer and insisted on a female trainer. Specifically, he wanted to be provided with a “young, hot female trainer” so “the pleasure of being in her presence” might help him “keep [his] nose to the grindstone”.
That same day, Delta notified the Complainant that his request was entirely inappropriate and left many of the female staff members feeling extremely uncomfortable. Delta revoked his facility privileges immediately.
In the following days and weeks, the Complainant sent numerous e-mails to Delta concerning his banishment. In one of the e-mails, the Complainant speculated that Delta had overreacted to his comments about a “hot” trainer due to cultural differences between Canadians and Americans. He said that in New Jersey, “girls would just be flattered by [his comments]” but “Canadians are just way more sensitive”, and that banning him was “a bit of an overreaction”. Not once over the course of the Complainant’s multiple e-mails, voicemails or telephone calls did he advise that he had a mental disability.
Delta reiterated that the banishment was based on concerns from staff members regarding his trainer request. Following an investigation where employees were interviewed, Delta concluded that they no longer felt safe in the presence of the Complainant and upheld the banishment.
The Complainant filed a human rights complaint alleging he had a mental disability and his banishment from the facilities was discriminatory. He suggested that he suffered from hypoglycemia, calling it an illness which impaired his cognition and caused his behaviour. Further, the Complainant alleged Delta ought to have inquired into whether he had a disability.
The Tribunal dismissed the complaint without a hearing, finding the Complainant had no reasonable prospect of establishing that Delta knew or ought to have known he had a mental disability.
First, the Tribunal found that while the Complainant provided some evidence to suggest that hypoglycemia can adversely affect cognition, judgment and behaviour, he provided no medical evidence that hypoglycemia actually affected his behaviour in this instance.
Second, the Tribunal dismissed the Complainant’s argument that his unusual conduct ought to have triggered Delta’s duty to inquire. The Tribunal noted that the Complainant had been using the facilities for years without exhibiting signs of mental disability. Regarding the Complainant’s e-mails in May 2016, the Tribunal found they did not reflect an uncontrollable comment blurted out, but rather were indicative of a deliberate, albeit misguided, train of thought. His further attempts to justify his comments by stating “Jersey girls” would take it as a “compliment” did not reflect a person whose inappropriate conduct was caused by cognitive impairment.
The Tribunal held the Complainant’s comments did not appear to be suggestive of a mental disability. Instead, they were precisely the type of stereotypical sexual objectification which makes women feel uncomfortable or unsafe in the workplace. The Tribunal stated that such inappropriate behaviour is precisely what the Code is intended to protect against, and there is a duty on employers to address their employees’ concerns.
Lessons for Employers
This decision highlights an employer’s duty to maintain a safe workplace for employees, including in particular the obligation to protect female employees from sexual objectification in the workplace. In this case, the employer acted appropriately by immediately addressing its employees’ concerns, conducting an investigation and upholding the banishment in the face of a discrimination claim. Here are some other lessons to be learned:
- A complainant must provide evidence that his or her conduct was caused by a disability in the specific instance. It is not enough to simply allege a disability and use it as an excuse for any and all conduct.
- An employer’s duty to protect employees is a serious one. In particular, employers have a duty to protect female employees from sexualization in the workplace by patrons and customers, even if that means removing or banning individuals from their premises.