An article about sexual harassment and (ever-so-tangentially) Donald Trump

Ok, I am sorry, I am truly truly sorry, but I am going to mention Donald Trump ever so briefly.  I swear that this blog post will relate to Canadian affairs, though I wish my no-'u' neighbors to the south all the best with their own matters.

Mr. Trump, via his off colour comments, has blown new life into an important conversation.  To be clear, I give him zero credit for that.  He represents the antagonist in my story.  Why this is germane to the focus of this blog, is that he brands himself a 'businessman' and indeed an attitude like his is far too common in workplaces across British Columbia - as well as the rest of the world.  What I recall of The Apprentice is that Mr. Trump would, for whatever reason, see fit to affirm that a woman he was about to fire was "beautiful" or similar, and then say "but you're fired."  If I cared what Mr. Trump thought, maybe I would ask him how the two thoughts are related.  But I do not care.  Below I refer to many individuals without a single comment about how they look, because it is frankly beside the point.

Much could be done to ameliorate this problem.  I am consistently disappointed by our legislature, administrative tribunals and courts in that regard.  Employment laws have achieved great things for society over the years.  They are the source of minimal wage protections, safe workplaces, countless accommodations of different types of people despite the associated business cost, as well as the nominal, but perennially toothless, rules which govern sexual harassment in the workplace. 

It is already unlawful to harass.  Those laws just have to be rendered effective.

Punitive damages in a court action are supposed to be set in an amount that hurts the guilty party.  Aggravated damages compensate a victim for the deleterious psychological effects.  WorkSafeBC is charged with policing workplace bullying and harassment, and the BC Human Rights Tribunal is supposed to award damages to compensate for the affront to dignity suffered in instances of gender-based discrimination in the workplace.  Despite all this, and with reference to the fact that I think my firm is known for taking bold positions, the advice I routinely have to give in such cases is that the law does not really offer much by way of remedy and pursuit of these cases is not cost-effective.  As such, our system demands that the victim, usually someone who has just left their job due to harassment, must pay out of pocket to tilt at this windmill.  Our highest court consistently emphasizes the importance of access to justice, and yet in this widespread instance of unfairness nobody is doing anything effective about it.

A brief glimmer of hope came in the form of this 2014 case from the Alberta Court of Appeal.  A vice-president was rightly fired for touching women who were asking him to stop.  Yet the world is such that, with the benefit of legal advice, he saw fit to challenge that termination through two rounds of litigation.  Thankfully he lost.  The Court essentially said that the world has changed, and we are living in a new reality regarding workplace harassment.

It is nearly two years since that decision was rendered.  

It has been cited once.

As the reader knows, BC is my focus.  I feel a need to share two further articles with the reader, both of which were posted by my Facebook friends this morning.  First is this article regarding a view expressed by Mr. Trump's son, Donald Trump Jr.  In brief, the (junior) Donald, a rich man in the public spotlight and specifically speaking in a public forum, expressed his view that women who do not speak up in the first instance of sexual harassment are stringing men along.  

Sorry, but that is stupid.  I try to adopt a professional tone in my blog posts, but 'stupid' is simply the best word.

A more progressive view accounts for the nuances of the situation.  See, for example, this article (also featuring... Donald Trump!). There is, and employers in BC should recognize this, a taboo which impedes victims from speaking.  The taboo stems, I suppose, from the way people think, which I respectfully suggest does not reflect well on the status of our society.  Whereas the first instance is bad, the victim might wait until multiple instances have occurred before reaching their breaking point.  Some never speak.  This does not mean the conduct is ok.  Much of what we are discussing are comments that should never be spoken in a workplace, regardless of whether the recipient of that comment voices a complaint.

Being as fair as I can to Trump Jr., workplaces are a place where people meet their partners and I do not think that will change.  Romantic overtures should fizzle though at the very first expression of ambivalence by the recipient.  It should not take an overt rejection.  

Moreover, much of what we are dealing with has nothing to do with workplace romance.  There are multiple instances of comments relating to a person's appearance which have no place in a business environment.  

Transgendered individuals often face questions regarding what their genitals look like.  To the people making those comments, I ask you, in what world is that ok?

Many of us would like to think this attitude had its time and died with the characters of Mad Men.  This is simply not reality.  While we have progressed as a society, we have far indeed to go.  Today's workplace is not immune to terrible instances of sexual harassment.  Things that no reasonable person has any business thinking are acceptable.  I am aware of many such instances both through my fellow graduates of UBC Law, other educated persons whom I know as well as potential clients of mine.  If you could find a more impressive person (not "woman" but "person") in this world than Michelle Obama then I would like to know who that is.  If you have not heard Mrs. Obama's campaign speech this week wherein she personally identifies with women of all stripes facing such comments, then please do yourself a favour and watch it. Why should Michelle Obama, of all people, possibly be made to feel that way?

I will make the observation that we have to also move toward a world where we recognize the existence of a multiplicity of genders.  Anecdotally, however, my experience has been that the vast majority of situations involve a person who portrays himself to the world as a man harassing an individual who gives every outward appearance of being a woman.  This article is largely confined to those situations, but without attempting to diminish the importance of the transgendered conversation.  If you want more on that, you may wish to start with the excellent paper delivered to the Continuing Legal Education Society of BC by Elizabeth Reid and Barbara Findlay, Q.C. in 2014 (sorry, I cannot link to it - copyright material).  I have heard of bosses groping, grinding their crotches against, demanding to change clothes in the presence of, making unwanted comments, gestures, telephone calls and house visits to and arranging for roses and champagne to be sent to co-workers' rooms on business trips (as well as cards inviting a visit from the recipient) and a variety of other scenarios.  Routinely these cases die on the vine.  I blame the system and not the victim.

I call on our legislature to reform laws such that this problem stops.  I call on our courts and administrative tribunals to do their jobs and render decisions which stop this widespread problem and make this world a better place.  I call on survivors (sometimes inappropriately called "victims") to do whatever they think is best, but also to know that they are survivors and do not need to feel any shame.  

I am also happy to put my money where my mouth is.  It will need to be the right case, because I would hate for an argument like this to fail (further entrenching the wrongs I decry herein), but I would love to make my pitch to a decision making body.  I have twice offered to represent a harassed individual for free in trying to make a pitch to a court/tribunal that it is time to set a new precedent.  No takers so far... but I remain willing.

BC Human Rights Tribunal Grants Discrimination Award for "Sexting" (Sexual Harassment)

The British Columbia Human Rights Tribunal's ruled in McIntosh v. Metro Aluminum Products Ltd., that an employer and its owner were liable for substantial damages because of unwanted sexually suggestive text messages, sometimes referred to as "sexting".

FACTS:

For a time after starting work at Metro, Ms. McIntosh participated in a consensual sexual relationship with Metro's owner, one Mr. Augustynowicz. In the course of their relationship, the parties exchanged sexually explicit texts.

Months after the claimant ended the relationship Mr. Augustynowicz continued to send inappropriate text messages. The messages became more offensive over time. Mr. Augustynowicz continued to send messages until eventually, Ms. McIntosh threatened to report the matter to the police.

ANALYSIS:

The Court's analysis is contained in the following paragraphs (referring to the BC Human Rights Code) from the reasons:

[99] Ms. McIntosh filed her complaint under s. 13 of the Code, which provides:

(1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of ... sex...

...

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

[100] The onus is on Ms. McIntosh to establish, on a balance of probabilities, that the Respondents, or any of them, discriminated against her on the basis of sex (sexual harassment).

[101] Sexual harassment is a form of sex discrimination: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252, [1989] S.C.J. No. 41 (Q.L.). The Supreme Court of Canada defines sexual harassment broadly as:

... unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment. It is...an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.... (para. 56)

[102] The Court went on to quote with approval the following descriptions of sexual harassment:

...Sexual harassment is 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...

...Harassment behaviour may manifest itself blatantly in forms such as leering, grabbing, and even sexual assault. More subtle forms of sexual harassment may include innuendos, and propositions for dates or sexual favours.... (para. 49)

[103] The Supreme Court of Canada also commented on the scope of circumstances that might constitute sexual harassment:

...Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee fail to comply with the demands. Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one. Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments, but where no tangible economic rewards are attached to involvement in the behaviour (para. 52).

[104] There is no dispute between the parties that there is sexual content in the various text messages. The issue is whether Mr. Augustynowicz's sexualized text messages were unwelcome.

[105] The test for determining whether conduct is unwelcome is an objective one: would a reasonable person, taking into account all the circumstances, know that the comments were unwelcome.

[106] In Mahmoodi v. University of British Columbia (1999), 36 C.H.R.R. D/8 (B.C.H.R.T.); petition for judicial review dismissed 2001 BCSC 1256 (CanLII), 2001 BCSC 1256, the Tribunal set out the following considerations when assessing whether conduct is unwelcome:

i) A complainant is not required to expressly object unless the respondent would reasonably have no reason to suspect it was unwelcome;

ii) Behaviour may be both tolerated and unwelcome;

iii) Not only overt, but also subtle indications of unwelcomeness may be sufficient to communicate that conduct is unwelcome; and

iv) The reasons for submitting to conduct may be closely related to the power differential between the parties and the implied understanding that lack of co-operation could result in some form of disadvantage. (paras. 140-141).

The Tribunal found that Ms. McIntosh had proven that she was subjected to sexual harassment in the workplace. Mr. Augustynowicz was in a position of authority and responsible for the terms and conditions of Ms. McIntosh's employment. He was the person responsible to maintain a workplace free of sexual harassment. He failed in this responsibility by repeatedly making sexual comments and propositions that were "offensive, inappropriate, and unlawful in an employment context."

While the Tribuanal stated that the parties were entitled to enter into a sexual relationship while working together, once the employee communicated that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. A knew, or ought to have known, that the text messages were not welcome and were impacting the work environment.

REMEDY:

The Tribunal:

1. ordered Metro and Mr. Augustynowicz to cease all discriminatory conduct and
2. granted a declaration that the conduct was discriminatory and contrary to the Human Rights Code (British Columbia).
3. awarded the claimant:

• $14,493.80 as compensation for lost wages;
• $2,900.85 as reimbursement for expenses incurred in pursuing the claim, and
• $12,500 as damages for injury to dignity, feelings and self-respect.