** Note: This document contains details about sexual violence that may be upsetting to some readers.
The Complainant was a high school basketball player. She was coached by Mr. H.
At the same time, Mr. H was the majority owner of a sporting goods and apparel store. At one point, the Complainant emailed Mr. H, expressing that she wanted to work at the store. Subsequently, the Complainant was contacted by the floor manager of the store, who hired her to work as a part time sales representative. During this time, the Complainant and Mr. H communicated via e-mail and text messages. At a certain point, the communications between the Complainant and Mr. H transitioned from being basketball-related to being more personal in nature. The Complainant characterized these communications as “uninvited”. The Complainant also alleged that Mr. H became more physical with her, which included punching her arm, stroking her arm and patting her buttocks. The Complainant testified that she left her job as a result of this conduct.
The Complainant submitted a complaint with the Yukon Human Rights Commission (“the Commission”) against Mr. H and the sporting goods and apparel company (the “Corporate Respondent”). It alleged that Mr. H and the Corporate Respondent had discriminated against her on the prohibited ground of sex by sexually harassing her, in violation of the Yukon Human Rights Act (the “Act”). She alleged the discrimination was in connection with her employment.
The Yukon Human Rights Board of Adjudication (“the Board”) was tasked with making a
decision regarding this case. The Board identified that sexual harassment was at the core of this case. In its analysis, the Board relied on the Supreme Court of Canada case Janzen v Platy Enterprises Ltd, which stated that sexual harassment is a form of sexual discrimination. Janzen defined sexual harassment as “any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity”. In the first step of its analysis, the Board determined whether this is a prima facie case of sexual harassment. In other words, at the first blush, does this appear to be a case of sexual harassment? The Board concluded that the Complainant’s allegation that the Respondent’s conduct was unwelcome along with the evidence that she had to endure sexually inappropriate comments for a couple of weeks established that this was a prima facie case of sexual harassment.
Next, the Board used the legal test for establishing sexual harassment. The four elements of the test were drawn from Janzen:
- The conduct must be “unwelcome”;
- The conduct must be sexual in nature;
- The persistence or gravity of the conduct must be enough to constitute harassment, and;
- The conduct must be notified to the employer.
First, the Board determined that Mr. H’s actions were unwelcome. Canadian
case law defines “unwelcome” conduct as behaviour the employee did not incite and regarded as undesirable. In this case, the Complainant clearly testified that the behaviour was “unwelcome”. Though there was no evidence that she communicated that the behaviour was unwelcome, the Board knew that she quit her job as a result of the behaviour. Also, the evidence showed that Mr. H sent e-mails and text messages to the Complainant apologizing for his behaviour.
Second, the Board determined that the conduct was sexual in nature. To determine this, the Board used the “reasonable person” standard. The “reasonable person” standard is a legal test – the “reasonable person” is a hypothetical person in society with an ordinary degree of reason, prudence, foresight and intelligence. In this situation, the Board asked the question: would a reasonable person say that Mr. H’s behaviour was sexual in nature? Based on the evidence presented to them, the Board concluded that the answer to this question was yes.
Next, the Board concluded that Mr. H’s behaviour was persistent enough to constitute harassment. In this case, though the communications were within a limited timeframe, the Board stated that they were intensive. Finally, the Board considered whether the Corporate Respondent was notified of the conduct. This was important to consider since the primary goal of human rights law – like the Yukon Human Rights Act – is not to punish, but rather to remedy discriminatory actions. In this case, there was no evidence that the Complainant contacted her floor manager or spoke directly to Mr. H. Therefore, the Board concluded that Corporate Respondent could not be held responsible because it did not have the opportunity to address the allegations. Nonetheless, the Board found Mr. H to be responsible for sexual harassment.
In making this decision, the Board considered important factions related to the relationship between the Complainant and Mr. H. This included the power imbalance and the age difference between the Complainant and Mr. H. It also considered the lack of maturity in teenagers. Relying on existing research, the Board reinforced the need for adults to take on a greater share of the responsibility both legally and morally when dealing with teenagers.
In its final decision, the Board found that the Complainant experienced harassment at the “most mild end of the spectrum” of sexual harassment. Furthermore, the Board stated that most of the evidence that proved the allegations of sexual harassment occurred outside of the work environment and was not specifically related to the employer-employee relationship. When choosing an appropriate remedy, the Board concluded that punitive damages were not necessary in this case. The finding of discrimination was enough and would serve as a cautionary tale for other organizations and businesses.