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Is it sexual harassment? Maybe… completely… not at all!

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When HR departments become aware of a complaint, they should ask themselves the threshold question: If what is alleged is true, does it breach our policies or statutes? A recent decision of the British Columbia Human Rights Tribunal (“the Tribunal”), Lin v. Starbucks Coffee Company (Canada) and others1 provides some guidance on how to answer this question in the context of allegations of sexual harassment.

In this case, the complainant claimed that her then assistant manager and supervisor (“Respondent 1”) sexually harassed her in the course of her six months of employment as a shift supervisor at Starbucks. The complainant also alleged that two other individuals, both supervisors of Respondent 1, failed to adequately respond to her complaint of sexual harassment when she came forward.

The complainant made additional allegations of discrimination based on age and race against these two other respondents.2 The respondents denied the allegations and applied for the dismissal of the complaint for lack of reasonable prospect of success. After accepting the filing of only parts of the complaint, the Tribunal ruled in favour of the respondents.

The alleged behaviours

The complainant claimed that between December 2018 and March 2019, Respondent 1 frequently touched her hands while pretending it was accidental. She also claimed that he touched her waist on one occasion. Further, the complainant claimed that on one occasion, Respondent 1 told her that he “has the charm” and held her hand “while gazing at [her] with a mysterious and proud smile.” On another occasion, Respondent 1 allegedly said to her that she had the “presence of a sexual deviant” and tried to shake her hand.

The complainant reported that Respondent 1 said, “he likes [her]. He only wants to talk to [her]. He feels a synergy between [them] every time they close the store together [,] [and] [h]e wants to develop the relationship with her.” Respondent 1 allegedly asked the complainant how she felt, commented that he felt excited and tried to shake her hands, which she refused. The complainant also noted that one day, Respondent 1 wanted to chat with her during her break, but not his, about unspecified things not related to work.

The complainant reported to the two other respondents that Respondent 1 smiled at her and offered to make her a drink. Finally, she alleged that in response to her comment that she “better find a Jewish man for the purpose of living a quality life while doing better business,” Respondent 1 allegedly replied, “You need to find a Jewish man just like me, a Capricorn.”

The decision

Echoing the rulings in Berezoutskaia v. British Columbia (Human Rights Tribunal),3 Moore v. British Columbia (Education),4 and Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center),5 the Tribunal reiterated that the threshold for a complaint to proceed was more than a mere possibility of success. Specifically, the complainant had to prove that her allegations amounted to more than mere conjecture. She also had to demonstrate that her sex played a part, even a minor one, in the adverse treatment she experienced in her employment.

In the present case, the Tribunal ruled that some of the allegations were not of a sexual nature. In that regard, the Tribunal mentioned the allegations against Respondent 1, including “chatting” with the complainant about unspecified and non-work-related matters, telling her “he had the charm,” that he felt excited and felt a synergy, shaking her hands, and offering to make her a drink.

Further, the Tribunal decided that the complainant did not provide enough context for the comments and behaviours to indicate that they were of a sexual nature – the “sexual deviant” comment and “the Jewish man” interaction. The Tribunal noted that although touching of the complainant’s waist and repeated touching of her hands could possibly amount to sexual harassment, a hearing required more than a possibility for a finding of discrimination. As a result, the Tribunal was not persuaded that the alleged conduct, taken separately or as a whole, was unwelcome and detrimentally affected the complainant’s employment.

As indicated in the ruling in Brito v. Affordable Housing Societies and another,6 The Tribunal reaffirmed that its role is not to police workplaces for the slightest offences. It also concluded that not every negative comment connected to a protected characteristic violated the Human Rights Code.

Now what?

The test for a hearing to proceed in the context of allegations before a Human Rights Tribunal and the one to decide whether an investigation is warranted is different by nature. The latter is understandably lower than the former since prudent employers typically err on the side of caution by addressing any complaints which could be a potential breach of its statutes and policies. This recent decision of the British Columbia Human Rights Tribunal is, however, useful as providing some guidance in what behaviour could fit the definition of sexual harassment. It also highlights the importance of contextual information in assessing allegations of this nature

1 2022 BCHRT 87 (CanLII).

2 I did not discuss these allegations.

3 2006 BCCA 95 (CanLII).

4 2012 SCC 61 (CanLII).

5 2015 SCC 39 (CanLII).

6 2017 BCHRT 270 (CanLII).

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