Determining the validity of a complaint of workplace sexual
harassment requires careful consideration of the facts and a
balancing of social policy considerations. Sexual harassment as a
form of discrimination based on sex is degrading, demeaning, and
may have significant and negative effects upon the victim,
particularly when there is a power imbalance between the
complainant (employee) and the respondent
Nonetheless, Human Rights Tribunals across Canada have struggled
with balancing the need to enforce sexual harassment laws with the
desire to avoid having them develop in a manner that unreasonably
inhibits normal social conduct. In order to strike a balance
between these competing priorities, Tribunals are sometimes willing
to consider whether the behaviour complained of is normal social
behaviour or whether the complainant contributed to the creation of
an environment where such behaviour would be considered acceptable.
Given the significant adverse effects of sexual harassment and the
desire to avoid blaming victims, these factors are rarely dominant
considerations, and when they do influence a decision, tend to
mitigate damages rather than extinguish a complaint altogether. The
British Columbia Human Rights Tribunal most recently engaged in
this delicate balancing act in Kang v. Hill and
Ms. Kang was hired on June 29, 2009 as Mr. Hill's
administrative assistant. Shortly into her employment, Mr. Hill
confessed his feelings for her and gave her a list described by Ms.
Kang as "incredibly intimate" and entitled "Reasons
Why I Think You Love Me Too." By the beginning of August, Ms.
Kang had left her employment and filed a sexual harassment
complaint with the BC Human Rights Tribunal.
Despite the respondent's actions, the Tribunal found that
Ms. Kang was unable to establish a prima facie case of
discrimination. In doing so, the Tribunal focused largely on Ms.
Kang's conduct, in particular the fact that from the outset of
her employment she routinely asked Mr. Hill increasingly personal
questions about his marriage, sex life and his attraction to her.
Her willingness to initiate and engage in such intimate
conversations created a workplace environment where the
respondent's actions, although not considered 'normal
social interactions,' were deemed acceptable.3
In light of Ms. Kang's conduct, the Tribunal found that she
had no real fear of adverse consequences to her employment. It was
also held that the imbalance of power between probationary
employees and supervisor/
employers was not a factor relevant to the determination of this
case.4 Indeed, the Tribunal held that Mr. Hill's
confession of his attraction was not an assertion of power, but was
an "acknowledgment of his weakness, which to some degree
placed him under her power."5 It will be
interesting to see how the downplaying of the power imbalance will
be treated by subsequent Tribunals as it is often one of the chief
considerations in workplace sexual harassment cases.
Kang v Hill is significant in that it suggests that a sexually
charged working environment created – or contributed to
– by the complainant may, in some cases, provide a
defence against allegations of sexual harassment, even where the
respondent is the employee's supervisor and the owner of the
business. Nonetheless, the applicability of this case may be
limited by its unique factual make-up. Had Mr. Hill's conduct
not been preceded by Ms. Kang's behaviour, it is likely that
his conduct would have constituted sexual
* The author wishes to acknowledge the assistance of
Brandon Hills, Articled Student, in drafting this
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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