A recent decision of the British Columbia Human Rights Tribunal (2013 BCHRT 289) dealt with a complaint by Adele Kafer that she had been subjected to sexual harassment in her employment at Sleep Country Canada.

Ms. Kafer said that she was subjected to ongoing sexual harassment. For example, another employee, Arif, said “see you later bitch” to her in the presence of other employees. Arif also told her that he would only be able to sleep with her if he “roofied” her, in reference to a date rape drug. Arif then sent an e-mail from her email address on the company e-mail system referring to her as “gay and stupid and weird” and saying that “I wish I could have Arif he is the all mighty and has the biggest penis.”

After the e-mail incident, Ms. Kafer went on sick leave and sought medical treatment for stress arising from the sexual harassment at work. She also filed a human rights complaint against Sleep Country.

In an unusual defence, Sleep Country said that Ms. Kafer had worked in a number of its stores and that all of the stores she worked in had a culture “whereby sexually explicit banter, jokes and innuendo were considered reasonable social interaction between employees and between employees and managers.” Sleep Country admitted all of the allegations made by Ms. Kafer, but it said that she had participated in the sexual banter and conduct. Ms. Kafer had talked frequently about the size of penis that would suit her. She talked with another employee about who they wanted to have sex with. She, together with other employees, used sexually explicit swear words at work. Until the final e-mail incident, Ms. Kafer had never complained to Sleep Country about the ongoing sexual banter and jokes in the workplace.

Ms. Kafer said that she did not like the atmosphere in the workplace but that, “I participated to fit in and be liked. I did not want to create waves by not participating.”

Sexual harassment, as defined by the Supreme Court of Canada, is “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.” In order to succeed in a claim of sexual harassment, the complainant has to prove that the sexual harassment was “unwelcome.”

The Human Rights Tribunal dismissed Ms. Kafer’s complaint on the basis that “there is no reasonable prospect that Ms. Kafer will succeed in proving that an objective person should have known that she found the matters she complains of unwelcome, given the degree of her participation in the sexualized workplace banter.” The tribunal stated that Ms. Kafer could communicate “directly, and through her conduct” that she does not welcome sexual banter in the workplace. If she did so, Sleep Country would be required to provide a work environment free of sexual harassment.

If an employee does not make it clear that he or she objects to sexually explicit jokes, comments, and banter in the workplace, the employee will not be able to successfully bring a complaint for sexual harassment arising out of that work environment.