Is A Complainant No Longer Required To Show That Conduct Was "Objectively Unwelcome" To Substantiate A Claim Of Sexual Harassment?

• Published date: 06 April 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Roper Greyell LLP ' Employment and Labour Lawyers
• Author: Ms Gabrielle Berron-Styan

In the recent decision of Ms. K. v. Deep Creek Store and another, 2021 BCHRT 158, the BC Human Rights Tribunal (the "Tribunal") declined to follow a long line of human rights case law which requires a complainant to show that conduct was "objectively unwelcome" to substantiate a claim of sexual harassment.

This decision represents a break from the established jurisprudence and should be of interest to employers faced with a claim of sexual harassment in the workplace.

Facts

The complainant worked as a clerk at a convenience store. She was 21 years old at the time she was hired. She alleged that her direct supervisor sexually harassed her in the workplace and then retaliated against her when she brought her human rights complaint.

In particular, the complainant alleged that her supervisor, who was in his mid-40s at the time and also the owner of the convenience store, offered her cash for sex and, when she declined, he made matters worse for her by creating a hostile work environment and then terminating her employment. After she filed her human rights complaint, he set out to harass and intimidate her by trespassing at her home in the middle of the night.

Decision of the Tribunal

In arriving at its determination that sexual harassment did indeed occur, the Tribunal applied the decision of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, which sets out the definition of sexual harassment. Sexual harassment is defined broadly 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".

The Tribunal noted that following Janzen, there have been a number of human rights decisions which indicate that in order to succeed in a sexual harassment claim, the complainant must prove that the sexual harassment was "objectively unwelcome". In other words, the complainant must prove that a "reasonable person" would know the conduct to be unwelcome.

The Tribunal held that while it was required to find that the conduct was unwelcome, it was not bound to follow the Tribunal's jurisprudence requiring the complainant to establish that the sexual harassment was unwanted in an "objective sense". The Tribunal took issue with the additional onus which the Tribunal had historically placed on complainants and declined to hold the complainant to that onus in this case.

Citing UBC Professor Bethany Hastie, the Tribunal explained:

Requiring...