In December 2013 we reported on the allegations faced by the Miami Dolphins that one of its players had been bullied and harassed by his teammates, an issue faced by many employers. Sometimes these issues are complicated when a complaining employee has been or is an active participant in the complained-of behavior.
How do Canadian courts and human rights tribunals deal with these situations? The British Columbia Human Rights Tribunal had occasion to consider this recently in Kafer v. Sleep Country Canada and another (No. 2).
In this case, Adele Kafer alleged that a series of highly sexualized comments directed toward her by her coworkers constituted sexual harassment under the British Columbia Human Rights Code.
The employer didn’t deny the allegations. Instead, it said that in each store where Kafer worked, a culture had developed whereby sexually explicit banter, jokes, and innuendo were considered reasonable social interaction. But there was extensive evidence from other employees and managers that Kafer had a history of fully participating in the crude workplace conduct and language.
In fact, in the employer’s submission, Kafer didn’t merely tolerate the conduct without objection, she actively and willingly participated in and instigated the sexualized banter and conduct, allegations she did not deny. She had never complained or expressed any degree of concerns about the allegations in her complaint.
Any chance of success?
On a preliminary basis, the tribunal was persuaded that there was no reasonable prospect that Kafer would succeed in proving discrimination under these circumstances. As such, the complaint was dismissed.
In reaching its decision, the tribunal cited the Supreme Court of Canada definition of 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 harassment,” noting the requirement that the conduct be unwelcome.
It went on to say that the test for establishing that conduct is unwelcome is an objective one. The question to be asked is whether, taking into account all of the circumstances, would a reasonable person know that the conduct in question was not welcomed by the complainant?
In applying the test to the facts, the tribunal found there was no reasonable prospect Kafer would succeed in proving that the conduct set out in her allegations was unwelcome from an objective point of view in light of the evidence supporting her full participation in the behavior.
However, the tribunal went on to say that the allegations could in different circumstances have amounted to sexual harassment. And, more importantly for employers, it’s not necessarily a defense to say a workplace has a culture of sexualized joking and conduct. Employers always have a duty to provide a workplace free of sexual harassment.
While the employer was in this case successful, the tribunal made it clear that there is a continuing obligation on employers to provide employees with a workplace free of harassment. Despite that this case originated in British Columbia, employers across Canada have such obligations.
Employers must be careful to provide and maintain a professional and respectful working environment and to limit sexual banter and innuendo. An employee’s participation in such banter may not always provide an employer with a defense.
Nicola Sutton is an associate in the Labour, Employment and Human Rights Group. She advises clients on developing and implementing employment policies, and assists with drafting employment and consulting agreements. Her practice also includes providing advice regarding human rights, privacy and freedom of information issues, compliance with Employment Standards and wrongful dismissal actions. Nicola also practices in the area of workers' compensation and occupational health and safety, advising clients on claims and compliance issues. She also has experience in conducting workplace investigations.