National Post (National Edition)
Crossing the line can be costly
Sexual banter does not indicate agreement
The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.
As general manager of the Brad Marsh Blue Line Grill in Ottawa, Quinton Taylor was in charge of scheduling the wait staff. His managerial role did not deter him from socializing with the staff both in and outside of work. Not uncharacteristically for such establishments, the work environment was sexually charged. Staff flirted and routinely engaged in sexual banter and off-colour jokes.
One evening, Taylor was participating in an after-hour card game with the staff and directed lewd comments toward a female staff member, S.S. Exhibiting no discomfort, S.S continued to play cards and brushed off the remarks. Months later, Taylor sent a salacious text message to S.S which she ignored. She hoped it would blow over and assumed, if she did not respond, Taylor would understand that his comments were unwelcome.
But 10 days later, he left her a sexually explicit voice mail — the voices of other male staff chiming in and laughter punctuated the background.
Humiliated and angr y, S.S quit and filed an application with the Ontario Human Rights Tribunal against Taylor alleging sexual harassment.
The tribunal’s vice-chairwoman, Michelle Flaherty, found that Taylor was in a position of power over S.S. As her boss, he could decide who worked the more lucrative shifts. As a result, his communicating a desire to have sexual contact with her amounted to sexual solicitation in violation of the Human Rights Code.
S.S. readily acknowledged she participated in general sexual banter. Flaherty said, however, that Taylor ought to have reasonably known that because
Harassment does not have to take place during the work day
his comments were meant as a sexual advance directed at S.S personally, they were unwelcome. As a result, hefty general damages were awarded against him.
This case conveys a warning to employers and managers:
Individual liability Managers need to be concerned about individual liability and cannot automatically assume their employer will take care of them. Although S.S. originally filed her application against her restaurant employer and settled with them, she still moved ahead with a hearing against Taylor personally. The tribunal had no problem awarding damages against him.
Banter is not consent Just because an employee shows no offence to a general sexual joke does not connote her agreement to a specific sexual advance.
Power imbalance Managers and supervisors are presumed to wield authority over staff. The mere fact that employees don’t object or even laugh at a manager’s sexual comments does not mean they find it welcome. The tribunals presume that subordinates are too intimidated to protest.
Location and timing is irrelevant The comments and messages S.S. received were made after work hours or off-site but sexual harassment does not have to take place during the workday or inside the workplace to create liability. The test is whether the employee reasonably perceives the manager’s behaviour as adversely affecting her conditions of employment.
Words are important Although Taylor never touched or physically threatened S.S., she produced medical evidence of emotional trauma triggered by his communications. That was enough for the tribunal to award significant damages.
Educate staff Invest in training and raising employee awareness as to the boundaries of acceptable conduct. The dividend is preventing a costly human rights proceeding with the deck stacked against the employer in most provinces.