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As an investigator at Rubin Thomlinson LLP who specializes in sexual harassment investigations, I understand how challenging these can be. These investigations need to be approached with not only sensitivity and empathy, but with up-to-date knowledge of the law.
Some recent human rights decisions from British Columbia as well as academic research have critiqued the application of the “unwelcome” element of the test for sexual harassment. Below, I will review this recent case law and research, and make suggestions as to how these developments could impact sexual harassment investigations.
Recent critiques of the element of “unwelcome” conduct in the test for sexual harassment
A. The academic research
The definition of sexual harassment was established by the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd.1 This definition has been interpreted as requiring three essential elements: 1) conduct of a sexual nature; 2) that is, or ought reasonably to be known to be unwelcome; 3) that produces adverse consequences for the complainant.2
It is well established in human rights jurisprudence that an assessment of whether the respondent knew or ought to have known the conduct was unwelcome will be based on all the circumstances, including the power dynamic between the parties. It is also accepted that complainants are not required to actively protest to the conduct, and that conduct may both “be tolerated and yet unwelcome at the same time.”3
Recent academic research has argued that the requirement for the sexual conduct to be “unwelcome” and the corresponding burden on the complainant to prove that the conduct was unwelcome is outdated and risks introducing harmful gender-based myths and stereotypes into the analysis.4 Drawing support from the adoption of the affirmative consent standard in criminal and tort law, the research suggests that in order to avoid these problematic interpretations, the “unwelcome” element should be removed from what the complainant is required to prove and instead addressed as part of the respondent’s defence to the conduct (effectively shifting the burden of proving “welcomeness” or consent to the respondent).
B. The case law
Some recent decisions from the British Columbia Human Rights Tribunal have made explicit reference to this research when reaching their findings. For example, in The Employee v. The University and another (No.2),5 where the allegations involved a faculty member telling a more junior colleague during her probationary period that he was “crazy about her,” the Tribunal Chair acknowledged that the “unwelcome” element of the test “may be objectionable” to the complainant and that “it may be time to revisit whether this requirement unfairly places the burden of establishing lack of consent on a complainant.”6 Ultimately the Tribunal Chair held that while the comment was unwelcome and inappropriate, it did not rise to the level of sexual harassment. In the Chair’s view, the comment was not “egregious or virulent,” did not amount to an affront to the complainant’s dignity, and the respondent had taken remedial steps to reduce the harm to the complainant.
More recently, in Ms. K. v. Deep Creek Store and another,7 where the complainant was subject to retaliation from her boss after she rejected his sexual advances, the Tribunal Member critiqued the traditional objective consideration of the “unwelcome” element. The Tribunal Member noted the limitations of the “unwelcome” test and instead considered whether the complainant could meet the “unwelcome” prong by proving that the conduct had an adverse impact on them (in line with the test for discrimination). The Tribunal Member found that evidence that the sexualized conduct adversely impacted the complainant was enough to show that the conduct was unwelcome. The Tribunal Member added that even if she had applied the traditional objective test for unwelcomeness, she would have reached the same conclusion – that the conduct was unwelcome.
Considerations for sexual harassment investigations
The above developments in academic research and case law are relevant to workplace investigators tasked with investigating allegations of sexual harassment. While we do not suggest that the test in Janzen is going anywhere anytime soon, we do think that these cases and research require us to think more critically about the element of “unwelcome” conduct and how we should be approaching this prong of the test in our investigations. In light of these developments, here are some considerations when undertaking your next sexual harassment investigation:
- Be familiar with gender-based myths and stereotypes when investigating allegations of sexual harassment. Be aware that these myths are not solely applicable to allegations of sexual assault. These myths and their potential impact on the “unwelcome” analysis were effectively summarized in the British Columbia Human Rights Tribunal decision of Basic v. Esquimalt Denture Clinic and another:
- First, lack of protest is a myth or stereotype that privileges those who expressly protest over those who are more likely to suffer in silence. The myth or stereotype — that “real victims” will protest immediately — may taint the unwelcome analysis by negatively impacting a complainant who is unable to present clear evidence of active protest in response to harassment.
- Second, non-reporting is a myth or stereotype that privileges those who resist and report immediately. The myth or stereotype – that “real victims” will report immediately – may taint the unwelcome analysis through assumptions of how women should respond to sexual violence and tendencies to blame women for the violence perpetrated against them.
- Third, participation in prior behaviour is a myth or stereotype that privileges those who do not have sexual experience. The myth or stereotype is that “promiscuous” or “party” individuals are more likely to consent or less worthy of belief. This may taint the unwelcome analysis by suggesting that past behaviour would mean that the respondent, or reasonable person, could not reasonably be expected to have known that the conduct was unwelcome.8
- Consider all the circumstances of the matter when determining if the conduct was unwelcome. Ontario case law has stated that a determination of what is reasonable should take into account the perspectives of both individuals, the relationship between them, and any power imbalance.9 Ontario human rights case law has also found that the reasonable person in the context of this test is a person who does not rely on gender stereotypes and who understands what sexual harassment is.10
- If the respondent’s position is that the conduct was consensual, welcome, or further to “banter,” obtain evidence from the respondent as to what steps they took to ensure that their conduct was welcome. This is particularly true in a case where there is a power imbalance between the parties. As set out in the Ontario Human Rights Tribunal decision of M. v. Kellock, “The greater the power imbalance, the greater the onus on the individual with the power advantage to ensure their actions are not unwelcome.”11
1  1 SCR 1252.
2 In Ontario, this test has been codified in the Occupational Health and Safety Act (“engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome”) and the Human Rights Code (“engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.)
3 Mahmoodi v. University of British Columbia and Dutton, 1999 BCHRT 56 (CanLII), at para. 141. In the Ontario human rights context, see also Harriott v. National Money Mart, 2010 HRTO 353 (CanLII), at para. 108.
4 Hastie, Bethany. “An Unwelcome Burden: Sexual Harassment, Consent and Legal Complaints.” Osgoode Hall Law Journal 58.2 (2021): 419-452.
5 2020 BCHRT 12 (CanLII).
6 Ibid at para. 174-175. See also the Tribunal Chair’s decision in Basic v. Esquimalt Denture Clinic and another, 2020 BCHRT 138 (CanLII), for a similar discussion.
7 2021 BCHRT 158 (CanLII).
8 Supra note 6 at para. 104.
9 A.M. v. Kellock, 2019 HRTO 414 (CanLII), at paras. 111-112.
10 de Los Santos Sands v. Moneta Marketing Solutions Inc., 2016 HRTO 271 (CanLII), at para. 34.
11 Supra note 9, at para. 112.
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