A curious little decision was released this month by the Ontario Human Rights Tribunal involving sexual harassment under the Human Rights Code. In Schmor v. Stone Church Vineyards, an employee alleged that she had been sexually harassed by another female employee, and then dismissed when the employer was told (by a third employee) that the comments made were offending her.
The alleged harasser had repeatedly called Schmor ‘boobie girl’ in front of customers and co-workers, apparently a reference to the fact that she had sunbathed topless on a holiday. Later, the alleged harasser told Schmor to climb a pole in front of the workplace to change a sign, and then slide down the pole like a stripper. Schmor did not tell the alleged harasser that she found the comments offensive, but claims the comments made her embarrassed and uncomfortable, and that she was afraid to say anything because the woman making the comments was close with management. However, another employee told the owner about the comments and that they were making Schmor uncomfortable. After that, both Schmor and the woman who told the owners about the comments were terminated.
Schmor wins her case, but on the basis that she was fired as a result of the employer learning she did not like being called ‘boobie girl’. The tribunal found this to be unlawful reprisal under Section 8 of the Code. However, she lost the argument that the comment amounted to sexual harassment. I think this is a weird decision. Section 7 prohibits sexual harassment in the workplace, and then section 10 defines harassment as:
“engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”
The Tribunal found (1) that the comment were of a nature that the alleged harasser ought to have known they were unwelcome, and (2) that the comments were demeaning and embarrassing. But then Adjudicator Slotnick ruled that the comments were not ‘sexual’! Here’s what he ruled:
Here, while the remarks may refer to body parts and activities that in other contexts have sexual connotations, there is no suggestion that Ms. Edlington was making any sexual requests or suggestions. In fact, the evidence is that the “boobie girl” comment began as part of a friendly and innocent conversation about sunbathing. It was not a conversation about sex or a conversation that was related to either party’s sexual interests.There can be little doubt that calling someone “boobie girl” in front of others, including customers in the store, would be seen as demeaning and embarrassing, just as would the use of any other insulting language, whether sexual or not. In my view, the word “boobie” in this context does not transform an insulting remark into harassment because of sex.
So, according to this decision, for sexual harassment to occur, the comments must involve a a ‘sexual suggestion’ or ‘request’. I have serious doubts whether that is a correct interpretation of the law, it sounds awful narrow a definition. What do you think about this decision? Do you think the result would have been different if the harasser was a male rather than a female?
Finally, note that although the Tribunal finds there was no unlawful harassment here, the employer still breached the Code by retaliating against the employee once it learned she did not wish to be called ‘boobie girl’. In other words, it is ok to harass an employee by calling her ‘boobie girl’, even if the employer is aware that the conduct is unwanted, but it is not ok to fire the employee for asking that the name-calling stop. Isn’t that weird? The Tribunal explains that apparent anomaly by noting that the employee victim ‘believed’ it was a human rights issue.
Oh, I see. This could be a new way into the Human Rights Code for people not covered by a protected ground. For example, physical appearance is not a protected ground, so my employer can call me ‘ugly’ all it wants without violating the Human Rights Code (unless my ‘ugliness’ is related to a designated ground). But if I ‘think’ the comment that I am ugly is a human rights issue, and I ask my employer to stop calling me ugly, I may now have a human rights complaint if my employer dismisses me for complaining about being called ugly. Follow?