A recent decision of the British Columbia Human Rights Tribunal
(2013 BCHRT 289) dealt with a complaint by Adele Kafer that she had
been subjected to sexual harassment in her employment at Sleep
Ms. Kafer said that she was subjected to ongoing sexual
harassment. For example, another employee, Arif, said "see you
later bitch" to her in the presence of other employees. Arif
also told her that he would only be able to sleep with her if he
"roofied" her, in reference to a date rape drug. Arif
then sent an e-mail from her email address on the company e-mail
system referring to her as "gay and stupid and weird" and
saying that "I wish I could have Arif he is the all mighty and
has the biggest penis."
After the e-mail incident, Ms. Kafer went on sick leave and
sought medical treatment for stress arising from the sexual
harassment at work. She also filed a human rights complaint against
In an unusual defence, Sleep Country said that Ms. Kafer had
worked in a number of its stores and that all of the stores she
worked in had a culture "whereby sexually explicit banter,
jokes and innuendo were considered reasonable social interaction
between employees and between employees and managers." Sleep
Country admitted all of the allegations made by Ms. Kafer, but it
said that she had participated in the sexual banter and conduct.
Ms. Kafer had talked frequently about the size of penis that would
suit her. She talked with another employee about who they wanted to
have sex with. She, together with other employees, used sexually
explicit swear words at work. Until the final e-mail incident, Ms.
Kafer had never complained to Sleep Country about the ongoing
sexual banter and jokes in the workplace.
Ms. Kafer said that she did not like the atmosphere in the
workplace but that, "I participated to fit in and be liked. I
did not want to create waves by not participating."
Sexual harassment, as defined by the Supreme Court of Canada, is
"unwelcome conduct of a sexual nature that detrimentally
affects the work environment or leads to adverse job-related
consequences for the victims of the harassment." In order to
succeed in a claim of sexual harassment, the complainant has to
prove that the sexual harassment was "unwelcome."
The Human Rights Tribunal dismissed Ms. Kafer's complaint on
the basis that "there is no reasonable prospect that Ms. Kafer
will succeed in proving that an objective person should have known
that she found the matters she complains of unwelcome, given the
degree of her participation in the sexualized workplace
banter." The tribunal stated that Ms. Kafer could communicate
"directly, and through her conduct" that she does not
welcome sexual banter in the workplace. If she did so, Sleep
Country would be required to provide a work environment free of
If an employee does not make it clear that he or she objects to
sexually explicit jokes, comments, and banter in the workplace, the
employee will not be able to successfully bring a complaint for
sexual harassment arising out of that work environment.
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