If it’s unwelcome – it may be sexual harassment
by Patricia Janzen
Unless you work extensively in the human rights field as I do, you are probably not aware of how broadly sexual harassment was defined in Canadian law almost 20 years ago.
Forget about the way you would use the word harassment in common speech. Forget about dictionary definitions. In 1989 Chief Justice Brian Dickson of the Supreme Court of Canada defined 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.”
Since then, literally hundreds of cases have applied that definition to a broad spectrum of sexual harassment complaints, as well as complaints involving harassment based on one or more of the other grounds of discrimination prohibited by human rights legislation: age, race, colour, ancestry, place of origin, political belief, religion, physical or mental disability, sexual orientation, family status, martial status and criminal conviction unrelated to employment.
The definition has three distinct parts. “Of a sexual nature” ties the definition to treatment that is based on or related to a prohibited ground of discrimination. Secondly, the conduct must be sufficiently serious that it “detrimentally affects the work environment” or “leads to adverse job-related consequences for the victim.” In practice, this part of the definition is often satisfied when an honest complainant testifies to feeling uncomfortable or anxious at work due to the conduct of the perpetrator.
Finally, the conduct must be unwelcome. The Supreme Court of Canada selected only one adjective to describe the kind of conduct that can constitute harassment at law. It could have utilized one or more adjectives such as humiliating, intimidating, vexatious, insulting, offensive, abusive, improper or inappropriate. Instead, the court chose a word that could encompass any of the above — and less.
The court also chose a highly subjective word and subsequent case law has confirmed that, when examining whether conduct is unwelcome or not, an honest victim need only convince the adjudicator that the conduct was unwelcome to the victim and that a reasonable person in the same category as the victim would also find the conduct to be unwelcome.
Next issue we will look at an older BC Human Rights Council case from 1993, Dupuis v. Ministry of Forests, where council member Tom Patch “explored the boundaries of welcomeness.”
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.