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Human Rights Award Sends Yet Another Clear Warning against Sexual Assault in the Workplace

Jessica Gibson

Associate
November 16, 2022

The Decision

A recent decision from the Human Rights Tribunal of Alberta sends a loud and clear message to employers about the seriousness of sexual assault and misogyny in the workplace.

McCharles v Jaco Line Contractors Ltd., 2022 AHRC 115, from the Alberta Human Rights Commission, resulted in one of the largest damages for pain, suffering, and injury to dignity damages in that province.

The complainant, Christina McCharles, alleged that the respondent, Jaco Line Contractors Ltd, discriminated against her on the basis of gender contrary to sections 7(1)(a) and (b) of the Alberta Human Rights Act (“the Act”).

Ms. McCharles alleged that the respondent’s sole director and shareholder, James Hogg, sexually harassed her, including touching her breast and hip without consent while they were on a business trip on June 9, 2015. The respondent denied any harassment or inappropriate physical contact.

The Tribunal, however, is skilled at assessing whether the Act had been breached and determined through various evidence including Mr. Hogg’s own testimony, that the Act had been violated.

How to Prove Discrimination

As touched on in previous blogs, complainants have the burden of proving a prima face case of discrimination.  The legal test for discrimination requires that the complainant show, on a balance of probabilities, that:

1.      The complainant has a protected characteristic;

2.      The complainant suffered an adverse impact; and

3.      The complainant’s protected characteristic was a factor in the adverse impact.

A Protected Ground

As Ms. McCharles identifies as a woman, her gender is a protected characteristic under the Act, which met the requirements of the first step of the test.

Adverse Impact

Secondly, sexual harassment is a form of gender discrimination and can be broadly defined as:

Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is … an abuse of power. …Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. … [S]exual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.Janzen v Platy Enterprises Ltd., 1989, 97 (SCC) at p 1284.

Ms. McCharles described various discriminatory incidents which took place, including her termination from her employment:

·         Mr. Hogg had referred to her as “Supertits”;

·         Mr. Hogg arranged for him and Ms. McCharles to share a hotel suite during a work trip, with an open-concept den without a door or lock, even though she was not comfortable doing so;

·         Mr. Hogg grabbed the breast and hip of Ms. McCharles as she woke up from a nap; and

·         Mr. Hogg was aware that the complainant had accused him of inappropriately touching her, but did not take any further action to address the matter, such as ordering a workplace investigation.

Therefore, she was able to establish that she suffered adverse consequences.

The Nexus

Lastly, as per the third party of the discrimination test, Ms. McCharles had to demonstrate that the adverse impacts she experiences were connected to the protected ground; her gender. We call this connection the “nexus”. 

Mr. Hogg terminated Ms. McCharles employment for cause, citing poor performance and theft as the reasons for her dismissal without notice or severance. However, the Tribunal determined that Ms. McCharles’ dismissal was motivated, at least in part, by Ms. McCharles’ gender and the incident of sexual assault. In a clear and resounding condemnation of the respondent’s actions, Tribunal Member Ringseis comments as follows at paragraph 58:

The demeaning and cavalier way that the Owner treated this complainant is worthy of strong sanction. Women should not be forced to make a choice between career advancement and a safe workplace. Company owners especially owe a duty to their staff to create and maintain a safe work environment. The poisoned work environment where the complainant was exposed to demeaning names, the Owner’s gossip about wanting to sleep with her, and then finally being attacked physically is appalling. No person should have to work in these conditions.

The Damages Award

In reaching the damages amount of $50,000, Member Ringseis set out the rationale for a meaningful award in cases where the discrimination results in an employee’s dismissal as set out in Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62:

Loss of employment due to discrimination on its own is a serious affront to dignity. The Supreme Court of Canada has aptly recognized work as an “essential component” of a person’s “sense of identity, self-worth and emotional well-being”. When a person loses that sense of identity and purpose connected to their work due to discrimination, it can be, as it was here, devastating to the complainant.

There are many parallels between the above decisions and those that we see coming out of the British Columbia Human Rights Tribunal such as Ms. K v. Deep Creek Store and another, 2021 BCHRT 158.

Each of these decisions reiterate the importance of having a strong anti-harassment, and bullying and harassment policies in place. Bullying and harassment policies are a requirement for employers in British Columbia and have been for almost a decade.

Therefore, as part of the order against Mr. Hogg, the Tribunal required the implementation of an anti-harassment policy at Jaco Line Contractors and Mr. Hogg’s managerial employees were also ordered to participate in human rights training, with a focus on sexual harassment.

The message couldn’t be clearer – unwanted sexual conduct in the workplace will not be tolerated in Canada.

It is also critically important that employers have strong internal policies in place to address sexual harassment in the workplace.

We have years of experience drafting, implementing and advising on sexual harassment issues in the workplace. Contact us now; we want to help!