** Note: This document contains details about sexual violence that may be upsetting to some readers.
The Yukon Human Rights Commission received two complaints from the Complainant. He alleged that while working at a motel, the co-owner of the motel, Mr. E., had sexually harassed him. The first complaint alleged that Mr. E. repeatedly pulled down the Complainant’s pants over the course of a few months. Furthermore, the complaint alleged that Mr. E’s employer, the “Motel Respondent”, was also responsible for this sexual harassment by consenting to the conduct and failing to prevent or fix the situation. Ms. T was a co-owner and manager of the Motel Respondent.
Section 7 of the Human Rights Act (the “Act”) protects against discrimination on the basis of several grounds. “Sex” is a prohibited ground of discrimination. Section 14(1) of the Act provides that no person shall harass any individual on the basis of a prohibited ground of discrimination. The Act defines “harass” as engaging in a “course of vexatious conduct” that a person “knows or ought reasonably to know is unwelcome”. The Act also provides that no person shall discriminate “in connection with any aspect of employment”.
Therefore, there are four elements that the Yukon Human Rights Board of Adjudication (the “Board”) had to find to prove that the Complainant’s complaint was valid:
- a course of vexatious conduct;
- a connection with employment;
- a conduct that one knows or ought reasonably to know is unwelcome, and;
- conduct that treats an individual unfavourably on the prohibited ground of sex.
The Board concluded that the multiple instances – as established by the evidence – of Mr. E pulling down the Complainant’s pants is clearly a vexatious course of conduct within the meaning of the Act. Further, the Board concluded that since the conduct took place in the workplace, there was a sufficient connection with employment. Next, the Board concluded that though it is possible that Mr. E did not know that his conduct was unwelcome, he ought to have known that pulling down the pants of a person is inappropriate. Finally, the Board found that the act of pulling down a person’s pants is sexually oriented and as such, is conduct that treated the Complainant unfavourably on the prohibited ground of sex. Therefore, since the Board found the four required elements, Mr. E’s behaviour was harassment on the basis of sex.
Section 35 of the Act states that employers can be held responsible for the discriminatory conduct of their employees, unless they did not authorize the conduct, took steps to prevent the conduct or tried to rectify the situation after learning about the conduct. In this case, though Ms. T was not aware of the conduct, the Motel Respondent was still held responsible for Mr. E’s behaviour.
Ultimately, the Board found Mr. E as well as the Motel responsible for the harassment. Mr. Budge was awarded $5,000 in damages.