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Recent Consideration from the BC Human Rights Tribunal on the Test for Sexual Harassment

Marla Calvert
May 10, 2022

In the recent case of Ms. K v. Deep Creek Store and another, 2021 BCHRT 158, the Tribunal declined to follow past tribunal decisions which required the complainant to prove that sexual harassment was unwelcome in an “objective sense”. The Tribunal disagreed with the extra onus that has been placed on a complainant to prove that a reasonable person would know the conduct in question was not welcomed by the complainant.

In this case, the complainant was 21 years old when she was hired to work as a clerk at a convenience store. The complainant brought a human rights complaint alleging her older male boss, who was also the owner of the convenience store, sexually harassed her by subjecting her to sexualized comments, questions, and jokes in the workplace and by offering her $2000 to have sex with him. When she declined, he made matters worse by creating a hostile work environment, and then fired her. Once the human rights complaint was brought, he set out to harass and intimidate her by trespassing at her home in the middle of the night. As a result, the complainant brought another complaint alleging her boss retaliated against her for bringing a human rights complaint against him.

The Tribunal noted in its decision that although a complainant still must prove that a respondent’s conduct was unwelcome in order to prove sexual harassment, a complainant can prove that conduct was unwanted by establishing that the conduct had an adverse impact on them. The tribunal said:

In summary, to find sexual harassment contrary to the Code, the Tribunal must determine that the conduct is unwelcome or unwanted. The burden on the complaint is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender-based stereotypes and myths.”

The Tribunal found that the complainant did experience sexual harassment and a hostile work environment at the hands of her boss and that her boss’ treatment of her had an adverse impact on her. The Tribunal also found the complainant’s boss retaliated against her when he trespassed on her property.

The complainant was awarded $54,000 as compensation for lost wages and $45,000 for injury to dignity, feelings and self-respect for a total award of $99,000. The Tribunal found the conduct of the complainant’s boss egregious because of the misuse of his power and the fact he made the sexual harassment worse by poisoning the complainant’s workplace and making false allegations about her work performance.

This case serves as a good reminder that it’s an employer’s duty to provide a safe and healthy work environment free from sexual harassment and that failure to do so can result in significant monetary consequences.

If you have been sexually harassed in the workplace and have questions about your legal entitlements, contact us to discuss.  We want to help!