An allegation of sexual harassment can be one of the most
difficult and sensitive issues an employer faces. Despite training
and policy awareness, people can cross the line. Untangling the web
of who said what may be a challenge. Electronic communications may
make proof easier, however, what do you do with a cross allegation
that the communications were welcomed or consensual?
Is there a difference between consensual sexual banter and
unwelcome sexual harassment? If so, how can you tell?
Recently the British Columbia Human Rights Tribunal considered
this issue in Kafer v. Sleep Country Canada and another (No.
2), 2013 BCHRT 289. In this case, there was evidence of
ongoing, explicit and crude sexualized conduct and language in the
workplace. The complainant admitted that she frequently engaged in
sexual banter with multiple co-workers and at times started those
conversations. She also admitted that at times she felt that some
of those conversations crossed the line at which point she spoke to
the employees in question and asked them to stop making similar
comments in the future. Her requests were complied with. However,
crude sexualized banter continued. Following the receipt of an
e-mail which set out a number of sexual references and made
comments regarding her sexual orientation, the complainant
determined matters had gone too far and complained to her manager
about a wide range of conduct. The employer investigated the
incident, disciplined the author of the e-mail, and told the
complainant that it planned to train employees in appropriate
Based on the totality of the evidence the Tribunal dismissed the
complaint against the employer and an alleged harasser who was
named personally. The Tribunal concluded that the conduct at issue
would normally be considered sexual harassment on the basis of sex
and sexual orientation. However, the Tribunal determined that
the complainant would not be able to establish that an objective
person should have known that she found the comments unwelcome
given the degree of her participation in sexualized
This finding is particularly interesting in the face of the
complainant's allegation that she felt she had to participate
to "fit in." The evidence of very colourful and crude
language often used by the complainant (inappropriate to
repeat in this newsletter) probably tipped the scale against
The Tribunal made a point of reiterating the employer's duty
to provide a workplace free of sexual harassment and that it was
not a defence to say there was a workplace culture of sexualized
joking and conduct. This highlights a distinguishing feature of the
case. Only in rare cases will the complainant's own conduct
lead the Tribunal to find that there is no reasonable prospect to
prove that sexual comments or romantic advances were unwelcome from
an objective point of view.
Employers are obligated to take proactive steps to create a
harassment free workplace as well as investigate allegations and
eliminate harassment when found. Where employees do engage in
sexualized banter and conduct, the workplace will probably suffer
from morale and retention issues and the employer may be exposed to
liability. The absence of overt protest by an employee, or even
some participation in sexualized banter, should not be read as
condoning inappropriate behaviour. Employers should be proactive in
eliminating inappropriate behaviour, particularly behaviour that
from an objective view could be seen as unwelcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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