November 16, 2015

In the past year since the Jian Ghomeshi affair, we have seen media reports of parliamentarians being disciplined for sexual harassment, as well as the Board Chair of the Pan Am Games facing similar allegations. When it rears its ugly head, sexual harassment can manifest itself in a number of different ways, including some that are truly perplexing.

Utah/U.S.A.

McElroy v. American Family Insurance saw an employee in Utah sue his former supervisor for sexual harassment. The supervisor had allegedly touched the employee’s back and buttocks, complimented the employee’s appearance, and repeatedly asked the employee out for drinks. Perhaps the most bizarre aspect of this conduct: the plaintiff was made to take part in body-fat contests, for which the supervisor required him to wear a speedo.

Apparently, however, a requirement to wear a speedo to work is not enough to amount to sexual harassment in the opinions of both the District Court, and the Tenth Circuit Court of Appeals. The Court of Appeals held that the standard for actionable sexual harassment is conduct severe enough to “poison the workplace”; mere misbehavior is not enough. The facts of this case come across as amusing and over the top; yet the decision is even more strange given the seemingly high threshold to meet for sexual harassment. According to local commentators, the U.S. is rife with jurisprudence containing similarly ludicrous conduct on the part of employers. Dismissing a female employee for being “too attractive” to the point of being considered a threat to the employer’s marriage was seen as valid in the Iowa case of Nelson v. James Knight DDS. P.C. In Arkansas, squeezing a male employee’s nipple a single time was not enough to amount to sexual harassment in Rickard v. Swedish Match North America.

Ontario

In light of the enhanced protections available in Ontario to sexual harassment complainants, do we also see such strange fact scenarios in our jurisprudence? A look at case reveals that while courts and tribunals do take sexual harassment seriously, our province unfortunately does have its own share of weird, unfortunate incidences of harassment.

Two Human Rights Tribunal cases from 2013, for example, focused on waitresses in bars who had been harassed by their respective manager or owner. Smith and the Rover’s Rest and Bruce Dorman saw a manager obsessed over his waitress employee’s buttocks, including inappropriately touching her, and claiming that he could not concentrate on his golf tournament because he could not stop thinking about that part of her body. The conduct continued to escalate into completely bizarre territory: on three occasions, the manager expressed his wish in front of customers to “bend her over a pool table and smack her.” In Vipond and Ben Wicks Pub and Bistro and David Doherty, the applicant was told that she was the only person the respondent would cheat on his wife with after he made several drunken advances on her one night. Sexual harassment was found to have occurred in both of these cases.

A very recent decision, Schmor v. Stone Church Vineyards, involved an employee being fired after expressing displeasure over being called a “boobie girl” by another, female employee. That same employee also told the applicant to climb a pole to change a workplace sign, and then slide down the pole “like a stripper.” The Tribunal held that the comment itself was not enough to constitute sexual harassment, but the reprisal for reporting it did violate the Code.

In PIPSC v. CEP, Local 3011 (Haniff and Weatherill), an employee decided to perform “sexy dances” at work for a female co-worker who he harassed over a period of six years. A well-publicized case earlier this summer saw a restaurant worker finding drawings of male genitalia on her workspace. In British Columbia, the Kafer case investigated sexual banter in a workplace which included comments such as a male employee telling the applicant he would have to “roofie her” in order to sleep with her. The male employee then sent an email from his work account making extremely lewd comments of a similar nature.

The Tip of the Iceberg

As unusual as some of these examples may be, they reflect a sad reality for employees. These cases represent instances where employees have come forward and are likely just the tip of the iceberg – in many cases, victims do not come forward due to ignorance of their rights or fear of reprisal.

Sexual harassment is a serious issue, and thankfully the law in Ontario takes it just as seriously. Employees that are being harassed should understand that such conduct is not acceptable. While the Jian Ghomeshi case was deplorable, one positive result is that more people are now cognizant of their rights. An employee being harassed is advised to make it clear they do not accept the conduct and that it must stop immediately. If the behaviour does not stop, the victim should make a formal complaint and ensure that it is addressed by their employer. If necessary, legal remedies, including civil actions and Human Rights complaints, should be pursued. Visit our firm’s website to see how we assist employees in these difficult situations. Employers are encouraged to take every complaint seriously, meeting it with a thorough investigation. They are under a legal duty to provide a workplace free of harassment, and any steps taken to do so are not only legally required, they are also steps in the right direction towards a healthy workplace free of harassment. Any employers concerned about their legal obligations are encouraged to contact us should they require advice or assistance investigating complaints.

by Richa Sandill

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