Permissible social contact or sexual harassment?
by Patricia Janzen
In 1993, the BC Council of Human Rights applied the Supreme Court of Canada’s definition of sexual harassment to a case that explored “the boundary between permissible social contact and sexual harassment.” The case of Dupuis v. Her Majesty in Right of the Province of British Columbia as Represented by the Ministry of Forests, Forest Sciences Division (December 23, 1993) involved an employee and her supervisor who travelled alone together to a work site in the Queen Charlotte Islands. When they stopped for the night in Williams Lake, the supervisor rented only one motel room with two beds. During the evening in their room, the respondent kissed and caressed the complainant, but when he tried to remove more of her clothing, the complainant told him that she did not know him well enough to make love. The respondent stopped. They fell asleep on the same bed and during the night the respondent renewed his advances and they had what the adjudicator characterized as “voluntary” sexual intercourse. They had sex on several further occasions over the following week, including after they arrived in the Charlottes, but there was increasing friction between them and, by the time the respondent returned to Vancouver, both knew that the relationship was over.
The adjudicator described both parties as honest witnesses who told very similar versions of the events. The complainant admitted that the sex was voluntary but insisted that it was unwelcome, not only at the time of the filing of her complaint but as events unfolded. The respondent described a serious and sincere interest in pursuing a relationship with the complainant (both were single) and he believed that his attraction to her was reciprocated. However, by the time he returned to Vancouver he knew the relationship was over because they were fighting all the time.
In deciding whether the conduct was unwelcome the adjudicator relied heavily on the imbalance of power between them.
The complainant was young, had moved from Ontario to BC to take the job only about two weeks before these events occurred, was isolated with the respondent in a series of remote locations and had a family background dominated by an authoritarian father. The respondent was her supervisor and somewhat older than her. He abused his authority when he rented only one hotel room for both of them in Williams Lake and the next night in Prince Rupert. The job was related to the field of studies that the complainant wished to pursue in the fall in graduate school at UBC. The respondent was an adjunct professor at UBC in her area of interest.
The adjudicator concluded that the sexual conduct was unwelcome to the complainant and that a reasonable person in the position of the respondent would have realized that the complainant was uncomfortable with the sexual conduct. After the complainant asked him to stop, he should have proceeded with extreme caution. The adjudicator recognized that people differed in their ability to pick up the social cues of others but also surmised that a person could be “blinded by his purpose.”
In summarizing earlier case law on the role that power plays in cases of sexual harassment, the adjudicator wrote: “the burden rests with the manager to be certain that any sexual conduct is welcomed by the employee and continues to be welcome.”
The employer was held vicariously liable for the conduct of the supervisor and the complainant was awarded damages from the employer for lost income and injury to dignity.
The Equity Ombudsperson
The Law Society wants to help stop workplace discrimination and encourage equitable workplace practices by providing BC law firms with the services of an Equity Ombudsperson. The Ombudsperson, Anne Bhanu Chopra, confidentially assists anyone who works in a firm in resolving concerns over possible discrimination, and assists law firms in preventing discrimination and promoting a healthy work environment.
Contact the Equity Ombudsperson, Anne Bhanu Chopra, on her confidential, dedicated telephone line at 604-687-2344 or by email to email@example.com.