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Female employee was participant / instigator of crude, ongoing sexual banter; harassment complaint dismissed

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Kafer v. Sleep Country Canada and another (No. 2), 2013 BCHRT 289, the BC Human Rights Tribunal ruled that a female employee was participant in, and instigator of, crude and ongoing sexual banter and therefore dismissed her sexual harassment complaint against her employer, Sleep Country Canada.

In reaching this conclusion, the Tribunal Member stated the following:

[32] The Supreme Court of Canada has defined sexual harassment as "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": Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 at D/6227.

[33] In Mahmoodi v. University of British Columbia, [1000] B.C.R.T.D. No. 52 (Q.L.) the Tribunal set out the test for whether conduct is unwelcome. It stated:

To establish that conduct constitutes sexual harassment, a complainant must establish that it was "unsolicited" and "unwelcome." The test for determining
whether conduct is unwelcome is an objective one: taking into account all the circumstances, would a reasonable person know that the conduct in question was not welcomed by the complainant? A complainant is not required to expressly object to the conduct unless the respondent would reasonably have no reason to suspect that it was unwelcome. In Zarankin v. Johnstone (1984), 5 C.H.R.R. D/2274 (B.C. Bd. Inq.), the Board of Inquiry held that, where a "reasonable person" would know that the conduct was unwelcome and the complainant did nothing to invite or encourage the actions, overt protest is not required... (para. 140).

[34] In my view, there is no reasonable prospect that Ms. Kafer will succeed in proving that the conduct set out in her allegations was unwelcome from an objective point of view. There is extensive material filed that appears to support that Ms. Kafer was a fully participating player in the crude sexualized conduct and language in the workplace. She admits to several specific incidents and does not expressly deny many other situations the Respondents' affiants set out. Mr. Arjania says, and Ms. Kafer does not deny, that they got along well and that she had specifically asked the Regional Manager to transfer him to the store she had transferred to. Mr. Arjania deposes that Ms. Kafer constantly talked to him about her sexual interests and activities in detail and made crude sexual comments. This is corroborated by other respondent affiants.

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[39] I add the following comment. On its face, Ms. Kafer's allegations, as admitted by the Respondents, of Mr. Arjania saying "See you later bitch" or something to that effect,  at a staff meeting, making "roofie" comments, and sending the crude E-mail would, in my view, amount to sexual harassment based on sex and, in the case of the E-mail, sexual orientation. It is not a defence for the Respondents to say that the workplace had a culture of sexualized joking and conduct. The employer has a duty to provide a workplace free of sexual harassment. This complaint is dismissed because I have concluded 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 complaint is dismissed under s. 27(1)(c).