Thursday, January 22, 2015

Sexual Harassment: Assessment of Consent/Unwelcome Time Specific

     Recently the issues of sexual harassment in the workplace and sexual assault have become hot topics.  As a lawyer who has represented women who have been on the receiving end as well as men who have been dismissed on allegations of sexual harassment, I have developed some skill and knowledge in this area over the past twenty years.  In this post I wish to highlight some excerpts from Sleightoholm  v.  Metrin and another 2013 BCHRT 75 (Canli).  This case illustrates the meaning of the term "unwelcome" in the context of assessing acts or utterances which are alleged to amount to sexual harassment.  In a nutshell it says that the assessment of whether or not the acts or utterances were unwelcome is time specific - it depends not on how the recipient interprets the act or utterance today but how they interpreted it or received it at the time of occurrence. 
[51] To establish that conduct constitutes sexual  harassment,  a  complainant  must establish that it was “unsolicited” and “unwelcome.” The test for determining whether conduct is unwelcome is an objective one: taking into account all the circumstances,  would a reasonable person know that the conduct in question was not welcomed by the complainant?

[52] Thus, the facts presented must be determinative of whether there were actions that were of a sexual nature and were they unwelcome and did they have a negative influence on the employment. If those findings are made, the inquiry moves to whether the Respondents knew or should have known that the conduct was unwelcome.

[53]     It is revealing that in her complaint, Ms. Sleightholm said:

In hindsight, though I didn’t approach Mr. Fukuhara at that time, these behaviours are the foundation of my confusion about the situation I was in. I did not recognize his comments and sexual harassment because they were done in a friendly and joking manner, but I now believe that his actions were sexual harassment. (emphasis added)

[54] I conclude that the events she now complains of did not seem to Ms. Sleightholm to amount to sexual harassment at the time they occurred. I have not itemized them and dealt with them individually. It is only “in hindsight”, while she was making this complaint, that she identified events that she now construes as amounting to sexual harassment. Ms. Sleightholm admitted that she re-characterized the events when formulating the complaint. It follows that if she did not identify the events as sexual harassment at the time they occurred, Mr. Fukuhara’s claim is understandable that he did not know that his comments and behaviour were unwelcome.


If you or someone you know is the target of sexual harassment in the workplace call me for a consultation.  Allow me to put my years of experience to work in recovering just compensation for you. (416) 364-8908.

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