Written by Kimberly Darling
In the recent decision of the BC Human Rights Tribunal in Curken v Gastronome Enterprises Ltd 2023 BCHRT 2, is notable for two reasons. First the BC Human Rights Tribunal confirmed that an employer that has no knowledge of sexual harassment of its employees is still liable for that harassment. Second, the award of $25,000 is one of the largest made by the Tribunal where the harasser is not also the business owner and the discrimination occurred during the employment but was not the reason the employee was fired.
In this case, the Complainant was a server at a high end restaurant in Kelowna. She was the only female staff member for much of her employment at this restaurant. Her colleague, who had been sexually harassing her for a long period of time, was promoted to be her supervisor. In addition to this, he was in a relationship with the restaurant owner’s daughter. Both due to his supervisory position at work, and his personal relationship with the owners, he held considerable influence over the Complainant’s work, including her schedule and ability to earn income.
The sexual harassment was not detailed in the decision, but did include sending pornographic materials to the Complainant by text, repeatedly propositioning her, unwanted physical touching, and exposing his genitals to her while they were at work. The Complainant did not tell the owner about this behaviour because she was afraid of retaliation by her harasser, her co-workers, and the owner. She simply could not afford to lose her job. However, eventually when it became clear that the harasser was impacting her employment, she decided to speak up. As she feared, she was fired from her job.
The owner claimed he decided to fire her for reasons related to an illegal tip-sharing policy. The Complainant believed that the owner made this decision because of the influence that the harasser had in manipulating the owner. The Tribunal found that on the evidence before it the sexual harassment was not the reason for termination.
After she was fired, the Complainant disclosed all of the details of the sexual harassment to the owner. Unfortunately, once the owner became aware of the sexual harassment, he started contacting staff and former staff to inquire about the Complainant’s sexual history. This added to the suffering of the Complainant and caused her additional humiliation and stress.
The Tribunal did find that the sexual harassment occurred as claimed and that its egregious nature was sufficient to warrant damages of $25,000 for injury to dignity, feelings, and self-respect under the Human Rights Code. The owner was fully liable for this amount despite not having any actual knowledge of the harassment while it was occurring. The actions of the owner in contacting people to discuss the Complainant’s sexual history was also part of the reason why the Tribunal awarded such a significant amount to the Complainant.
The Tribunal relied on decisions from the Supreme Court of Canada to find that it is irrelevant whether an employer has actual knowledge of sexual harassment when determining liability under the Code. This is because the employer is responsible for providing a safe work environment and the employer is the only party that can effectively establish and maintain a safe working environment.
The Tribunal also agreed with the Supreme Court of Canada’s reasoning in recent sexual assault decisions that refer to dispelling the “3 myths” when confronting sexual assault victims. Those myths relate to questioning why a victim did not report the actions, implying that the victim participated in the actions, and questioning whether or not the victim says “no”. These myths perpetuate gender based stereotypes and have no role in determining whether or not a sexual harassment or sexual assault has occurred.
This decision is very encouraging for people who have been the victim of sexual harassment at work. It sends a clear message that this behaviour is unacceptable. It is also a stark reminder to employers to make sure they not only have adequate policies in place to prevent harassment, but also that they take steps to enforce those policies. Finally, it is a clear recognition by the Tribunal that the “3 myths” have no place in an assessment of whether sexual harassment has occurred.