Authors: Michelle Bird

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November 29, 2018 in Vancouver, BC
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Jane Doe and the myth of the “real” victim: A recent court decision involving a BC woman serves as a cautionary tale against victim-blaming and stereotyping in sexual assault cases

 

The Federal Court of Appeal recently heard an application for judicial review of a decision of the Public Service Labour Relations and Employment Board (the Board) in which the Board had found that an employer – the Canadian Border Services Agency (CBSA) – failed to provide a harassment-free workplace for one of its employees.

We don’t know the employee’s name, since she is referred to throughout the decision as “Jane Doe.” We don’t know much about her job, other than that she worked at the Douglas, British Columbia port of entry. And we don’t know specifically what happened to her, since the only details provided in the decision are that she was subjected to “sexually explicit and sexually violent comments” several times a day, and that on August 28, 2009 she was sexually assaulted by a co-worker. What we do know is that the Board agreed that she had been sexually harassed and assaulted at work, but found that this treatment did not warrant any payment of compensation. The Board’s decision not to award compensation was the subject of the judicial review.

Spoiler alert for those who have not read this case: the Court found that the Board’s decision was unreasonable. That’s not the most interesting part of this case, though. What’s really interesting is – in a post-#MeToo world – how outdated and laden with misconceptions about sexual violence the Board’s reasons seem to be.

The Board’s decision is not publicly available, but is heavily quoted in the Court decision. The Court noted that the Board used words such as “reprehensible,” “vulgar,” and “humiliating” to describe the conduct Jane Doe experienced, and agreed that she had felt demeaned. The Board reviewed Jane Doe’s medical evidence, which showed that she was experiencing significant mental health issues, including anxiety and depression. What the Board failed to provide, however, was a clear explanation of why the violence Jane Doe experienced at work did not warrant monetary damages for her pain and suffering.

Reading between the lines, the Court surmised that the Board did not believe that the conduct Jane Doe experienced at work was the sole cause of her subsequent medical conditions. In its reasons, the Board stated that it was “unlikely, to say the least” that the sexual assault (which the Board referred to as a “vulgar prank”­­) caused the emotional impact that Jane Doe described. The Board went on to say that, while it was clear that Jane Doe was angry, the Board could not accept that “this one unpleasant experience” – meaning the sexual assault – caused a change in her personality “from confident, cheerful, and outgoing to timid, anxious and fearful.” This conclusion was reached in spite of a medical report stating that Jane Doe did not have pre-existing depression, and that her adjustment disorder developed as a “direct result” of what happened to her at work.

Also mentioned in the Board’s reasons was the fact that Jane Doe had a friendly relationship with her co-workers – including the co-worker who assaulted her – and that she would sometimes engage in banter with him that “had sexual content.” With respect to the harassment that preceded the assault, the Board noted, “There were steps that a confident employee such as (Jane Doe) could have taken to deal with the harassment.” Since Jane Doe failed to take those steps, the Board concluded that the work environment must not have been “as difficult to cope with” as she claimed.

The Court found that the Board erred in several ways, including in its failure to consider and explain why Jane Doe’s condition could only be compensated if the sexual assault were the sole cause of that condition. In fact, on a plain reading of the Canadian Human Rights Act, an applicant can be compensated for “any pain and suffering that the victim experienced as a result of [a] discriminatory practice.” (s. 53(2)(e)) (emphasis added)

The Court was also asked to weigh-in on whether there was a reasonable apprehension of bias on the part of the Board, specifically whether – as argued by Jane Doe – the Board’s decision “went beyond simply being unreasonable, and entered into the realm of sexist prejudice and bias.” Because the Court found that the Board’s decision was unreasonable, it declined to consider the bias issue. The Court did note, however, that the Board had described an incident that the employer acknowledged was a sexual assault as a “prank,” and cautioned, “It is necessary to take care not to inappropriately downplay or diminish the seriousness of unacceptable conduct.” The Court also noted that the Board did not explain why it found it hard to believe that the sexual assault caused the emotional impact that Jane Doe described, and suggested that a delay in the disclosure of an assault does not necessarily give rise to an inference that the complainant is not credible.

In the last year, more and more people have come forward to share their stories of sexual assault and harassment and to call out inappropriate workplace behaviour. With every story that comes to light, we see the negative, sexist and incomplete stereotypes about what a “real victim” looks like being broken down. It’s clear, however, that there is more work to be done. In the Jane Doe case, the Board bought in to several myths that, unfortunately, are still pervasive, even in 2018.

In order to avoid falling into these traps ourselves, we should all be aware of them:

Real victims report immediately

It is well-known that sexual assault and harassment is underreported. According to a 2016 study conducted by the Equal Employment Opportunity Commission, formal reporting of harassment was the least common response for those who experienced the behaviour in the workplace. Only 30 percent of men and women who were victims of harassment talked to a manager about it. This is not surprising, given that the same study found that 75% of people who reported workplace harassment faced some kind of retaliation for doing so.

There are many reasons why someone who has dealt with harassment or violence in the workplace might choose to delay reporting – or to not report at all. It is a serious mistake to assume that someone is lying because they did not report an incident immediately.

Real victims don’t engage in sexual banter

The Board’s reference to Jane Doe engaging in sexual banter with the co-worker that assaulted her is problematic for three reasons.

First, the Board’s reference plays into the notion that women have to exhibit a certain level of “purity” before we will fully accept their role as a victim. Unfortunately, “good girls” who wear cardigans and pearls are more likely to be believed than “bad girls” who wear short skirts and drink too much.

Second, the Board’s mention of sexual banter ignores the fact that there are multiple reasons an employee might go along with such behaviour. If sexual banter is part of a workplace culture, employees who do not necessarily agree with it might still participate, due to pressure to fit in with co-workers, thinking that participating it is the least path of resistance, and fear of retaliation or isolation if they object.

Third, the Board’s comment implies that by having discussions of a sexual nature with the co-worker, Jane Doe was somehow consenting to or inviting the subsequent assault. Setting aside the fact that one cannot “consent” to being assaulted, it is also well established that – even in workplaces where sexual discourse is common – it is still possible for behaviour to cross the line. In S.S. v Taylor, for example, the Ontario Human Rights Tribunal found that an applicant who participated in discussions and jokes about sex with a co-worker in the workplace did not welcome or encourage subsequent sexual advances from that same co-worker.

Real victims have a “reasonable” response to the incident

The Board’s characterization of Jane Doe’s reaction to the assault as “exaggerated” was informed by two errors. First, the error of downplaying the incident (by reducing a sexual assault to a “prank”) and second, the error of finding that it was unlikely that the incident could have caused Jane Doe’s severe mental health issues, in spite of a wealth of medical evidence that showed just that.

In a previous blog, I discussed several different types of bias, including “empathy gap.” The idea behind empathy gap is that it is difficult for a person to understand emotional reactions that fall outside of their own direct experience. While we obviously don’t know the personal experiences of the adjudicator who wrote the Board’s decision, it seems evident that there was a lack of understanding of Jane Doe’s mental state, and a lack of willingness to consider the relevant medical evidence. Unfortunately, people who have not been sexually harassed or assaulted often do not understand the significant emotional impact the experience can have.

It’s easy to chalk up the Jane Doe decision to a simple case of a tribunal getting it wrong. In the end, that’s what judicial review is for, right? But reading the Court’s decision closely, I can’t help but notice that Jane Doe was assaulted in 2009. She filed a grievance in 2010. The Board partially upheld her grievance in 2017, but denied her any compensation because they didn’t believe that she was seriously hurt by what happened. The Court found that decision unreasonable three weeks ago. Jane Doe waited nine years for someone to tell her that they believed her suffering mattered.

The long-held myths about sexual assault victims cannot be tolerated any longer. For the sake of every Jane Doe out there, we need to do better.