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Many of us are familiar with the expressions “shop talk” or “workplace banter” in reference to conversations that are presumed to occur in certain predominantly male workplaces, such as a construction site or an industrial worksite, but not in others.
A recent decision of the Human Rights Tribunal of Alberta considered the relevance of “shop talk” as a defence to allegations of sexual harassment made against a supervisor by a former employee who had been the only female labourer working on a construction site.
In Holmes v. Waiward Construction Management Inc., 2021 AHRC 147, the complainant alleged that her direct supervisor had sexually harassed her in the workplace and then failed to promote her when she did not reciprocate his flirting and sexually charged comments. She further alleged that her complaint of sexual harassment led to her termination of employment. The Tribunal found that sexual harassment did occur and once aware, the respondent employer failed to take the necessary steps to investigate and address the sexual harassment. The Tribunal found no connection between the sexual harassment and the complainant being passed over for promotion, nor with the termination of employment.
In reaching its determination with respect to sexual harassment, the Tribunal considered the respondent’s argument that the supervisor’s behaviour was in the context of “shop talk,” sometimes with sexual overtones, and sometimes with the participation of the complainant. In rejecting this argument, the Tribunal wrote that:
The very implication that sexual harassment is not sexual harassment because of the type of work location belies the fundamental principles of human rights in our province. Although some work sites may have norms that are unacceptable elsewhere, such as the use of swear words or other crude language, that does not mean we can ignore an objective baseline of appropriate behaviour that is expected in Alberta workplaces. To imply that it is “shop talk” for a male supervisor to single out his only female subordinate to ask if she “would fuck her boss” or if she “fucked” her date the night before, provides an excuse for sexual harassment to be written off as normal in the circumstances, resulting in those industries having an excuse to continue to be unwelcoming to women.
The Tribunal further noted that human rights legislation applies regardless of the workplace setting, and issued a strong warning to employers that, “If the ‘shop talk’ of the worksite permits sexual harassment as a norm, then the employer has a human rights responsibility to change the norms.” Otherwise, “A respondent employer is responsible and liable for the acts of sexual harassment committed by an employee.”
The Tribunal also found that the respondent failed in its duty to investigate and did not have a qualified human resources representative with experience or training in harassment investigations. For instance, the human resources representative did not conduct a full investigation as they did not follow the requirement in the harassment policy or in the law to promptly investigate the complaint, get statements from the employees, and decide what occurred after a review of the facts. Furthermore, the respondent argued that sexual harassment had not occurred, yet their actions of enrolling the supervisor in harassment training indicated otherwise. The human resources representative also testified that she did not call the complainant to follow-up with any questions about the harassment investigation. After the complainant was terminated from her job, the human resources representative chose to stop any further investigation and let the formal human rights process proceed instead. Despite agreeing that part of the reason for completing an investigation was to prevent a similar incident from happening again, the human resources representative said that she felt she could not complete it without the complainant being present and did not wish to bother her at home.
In awarding the complainant general damages of $20,000, the Tribunal considered the complainant’s humiliation and hurt feelings; her loss of self respect, dignity, self esteem, and confidence; the fact that the complainant was a subordinate to the supervisor and dependent on him for her career in the workplace; the frequency and duration of the harassment; and the ineffective response of the respondent, including its complete failure to follow its own workplace policy.
This case provides a cautionary tale for employers who assume that workplace norms, whatever those norms might include, will excuse behaviour that is contrary to the baseline expectations for workplace behaviour. Employers must carefully review such complaints and conduct proper workplace investigations that are compliant with their workplace policies, and applicable human rights and workplace health and safety legislation.
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