** Note: This document contains details about sexual violence that may be upsetting to some readers.
Ms. L and Ms. D (“the Complainants”) were both young women who worked at a daycare. During this time, Ms. H (“the Respondent”) was the director and Mr. G was a co-director, as well as a cook, janitor and a Supported Child Care worker. Both Complainants filed a complaint with the Yukon Human Rights Commission (“the Commission”), alleging that they were sexually harassed by Mr. G, and that the Respondent knew of the harassment and did nothing to rectify the situation.
Both Complainants alleged that Mr. G directed inappropriate and offensive comments towards them. Ms. L also alleged that Mr. G looked at her in a sexual way and that she felt pressured by the things he said to her, including comments about her appearance and his genitals. Similarly, Ms. D alleged that Mr. G also directed inappropriate comments towards her – including suggesting that they wrestle in the snow. Both Complainants voiced their discomfort to Mr. G. The Complainants had already settled their case with Mr. G. This decision pertains their case against Ms. H.
In making its decision, the Yukon Human Rights Board of Adjudication (“the Board”) considered the following sections of the Yukon Human Rights Act (“the Act”):
- Section 7(f), which prohibits discrimination on the basis of sex;
- Section 9 (b), which prohibits discrimination in connection with any aspect of employment;
- Section 14(1), which prohibits harassment; and,
- Section 35, which makes employers responsible for the discriminatory conduct of their employees, unless they can prove they took steps to rectify the situation.
The Board referred to the leading Supreme Court of Canada case on sexual harassment, Janzen v Platy Enterprises. Janzen concluded that sexual harassment is a form of sex discrimination. Sexual harassment can manifest both physically and psychologically. In cases of sexual harassment, complainants need to prove the following four elements:
- That the conduct was of a sexual nature;
- That the conduct was unwelcome;
- That the person alleged perpetrator knew or ought to have known that the conduct was unwelcome; and
- That the conduct had a negative impact on the workplace and led to negative job-related consequences.
First, the Board found that Mr. G’s comments and conduct were of a sexual nature and were not welcomed by the Complainants. The Board was also convinced that Mr. G knew or should have known that his conduct was not welcome. Indeed, both Complainants voiced their discomfort to Mr. G and there was a clear imbalance between Mr. G and the Complainants. He was their supervisor, he was an older male and, in a position to influence their jobs. Finally, the Board found that Mr. G’s conduct had negative job-related impacts for the Complainants. Both quit their jobs. Therefore, the Board found that Mr. G’s conduct was sexual harassment and in contravention of sections 7(f), 9(b) and 14(1) of the Act.
Next, the Board found that the Respondent was aware of Mr. G’s behaviour. She was either present for many of his comments or heard about them from other people. By choosing not to address Mr. G’s inappropriate comments and behaviour, she essentially consented to his conduct and failed to take any steps to prevent the discriminatory conduct at the daycare. Therefore, the Board concluded that the Respondent had acted against section 35 of the Act.
Then, the Board assessed what damages to award to the Complainants. When awarding damages for injury to dignity, feelings and self-respect, the following factors are generally considered:
- The nature of the harassment, whether it was verbal or physical;
- The degree of aggressiveness and physical contact in the harassment;
- The duration and frequency of the harassment;
- The age and vulnerability of the victim; and
- The psychological impact of the harassment upon the victim.
The Board explained that the aim of damages is to provide relief for victims of discrimination, not to punish those who discriminate. Specifically, the purpose of damages under human rights law is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in, had the discriminatory act not occurred. The Board ordered the Respondent to pay both Complainants $5,000 for injury to dignity, feelings, and self-respect as a consequence of the Respondent doing nothing to stop the harassment. The Board considered the age and vulnerability of the Complainants, the fact that the sexual harassment was mostly verbal and the fact that the harassment went on for the duration of their employment at the daycare.
In addition, the Board ordered the Respondent to pay Ms. D $2,079.50 and Ms. L $7,920.00 for lost wages.