Tuesday, June 16, 2015

Sexual/Social Boundaries in the Workplace: What Does the Law Say ?

     Over the years several women have consulted me on sexual harassment at work.
One of the most common questions that is raised involves how to respond to situations where a supervisor or co-worker expresses by words or conduct an interest in a relationship with them, compliments them on their dress or general appearance or an innocuous touching. Should one communicate their displeasure or rejection or should one remain silent is the question most raised. My answer is always it depends.  It depends on whether you view the act or utterance as unwelcome or not.  The Human Rights Code does not prohibit normal, consensual human interaction.  Unless the act or utterance represents a marked departure from generally acceptable office behaviour it will be incumbent on the receiver to communicate their displeasure.  The following decision by Adjudicator, Patricia E. DeGuire addresses these questions.  I have reproduced the portions dealing with the law on this point.


HUMAN RIGHTS TRIBUNAL OF ONTARIO





Text Box: 2005 HRTO 22 (CanLII)B E T W E E N:



Ontario Human Rights Commission
                                                                     -and- Lucy Farias
-and-


David Chuang (also known as David S. Chuang and S. David Chuang) carrying on business as Queenstate Dental Care
Respondent



 Citation:                     2005 HRTO 22


INTRODUCTION

Text Box: 2005 HRTO 22 (CanLII)[1] The Complainant, Ms Farias, was a patient of the Respondent, David Chuang, a dentist.She was still undergoing treatment from the Respondent when he invited  her to be his Office Manager/Dental Assistant. She accepted. The employment lasted for four months:  from January 27 to May 26, 2001.

[2] What came out of that brief period of employment/patient-dentist relationship are several allegations of discrimination with respect to employment because of sex (the “Complaint”): (subsection 5(1)); sexual harassment in the workplace because of sex by the Respondent: (subsection 7(2)); sexual solicitation or advance by the Respondent: (subsection 7(3)(a)); reprisal or threat of reprisal for rejecting the Respondent’s sexual solicitation or advance (subsection 7(3)(b); and reprisal (section 8) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code”).

[3]  The Tribunal convened the hearing on the merits on February 21 and 22,   2005. The Respondent did not attend. Now, the Tribunal must determine whether the Respondent has infringed the Complainant’s rights as alleged or any other rights; if such infringements contravene section 9 of the Code; and the appropriate remedy under section 41.

The Law

Text Box: 2005 HRTO 22 (CanLII)[195] Subsection 7(2) of the Code states: “Every person who is an employee has a right to freedom from harassment because of sex by his or her employer or agent of the employer or by another employee.”

[196]  Subsection 7(3) states:  Every person has a right to be free from,


a)    a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that  it is unwelcome; or

b)    a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

[197] It is useful at this point to set out the schema of subsections 7(2) and 7(3) of the Code and the difference between them and the rest of the numerated grounds under the Code. These two subsections enunciate the standard imposed on a complainant and a respondent in the workplace. Generally, in establishing a prima facie case, one need not prove intention or motive. By clearly requiring actual or objective knowledge, by necessary implication, the Legislature has graphed on intent, recklessness or wilful blindness as the test to be met to establish the elements of an infringement of subsections 7(2) and 7(3). The actual or objective knowledge is imputed in subsection 7(2). This introduces a binary: the elimination of sexual harassment in the work place, and protection of the complainant and the respondent. The first prong needs no explanation; the second needs explanation.

[198] The Legislature recognizes the fear of retaliation an employee may experience by informing someone in her or his workplace, especially one in authority, that his or her conduct is unwelcome. On the other hand, the Legislature recognizes —as well as the Supreme Court of Canada in Blencoe3--the inherent stigma, which attaches to a serious allegation of sexual harassment. Thus, it has established a scheme, which acts as a sword or a shield for the complainant or the respondent, respectively. The complainant can inform the alleged perpetrator that her or his sexual advance or solicitation is unwelcome without fear of retort. And, where there is reprisal or threat,  there is statutory redress. Without that protection, a complainant may not be able to assert her or his right or prove that the conduct was unwelcome, for invariably, the defence will be that the victim did not communicate that the conduct was unwelcome.

[199] Therefore, within that binary scheme, it is not enough for a complainant to give a “hint” to someone whose conduct he or she finds unwelcome. (See para. 209 below). The inherent nuance of a hint could be lost on one who is not alert to know that the hint is personal to her or him. Further, it is not enough to show the conduct made her or him uncomfortable.

[200] In determining whether a complainant’s right to be free from sexual harassment has been infringed, the courts, boards of inquiry and this Tribunal state that unwanted touching constitutes sexual harassment. (See e.g., Janzen v. Platty Enterprises Ltd., [1989] 1 S.C.R. 1252; and Impact Interior Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.).

[201] By necessary implication, in this case, the complainant must clearly indicate to the respondent that the conduct is unwelcome. It is the knowledge or imputed knowledge that the conduct is unwelcome, being reckless or being wilfully blind to the fact that a complainant does not wish to be touched, which leads to a finding of sexual harassment.

[202] When one understands that touching is unwelcome and still  touches,  the inference can be drawn that the person had the intention to touch or that person is being  reckless  or  wilfully  blind.    Thus,  the  form  of  communication  used  by the complainant to indicate that the conduct is unwelcome—verbal, physical or otherwise— and the conduct of the respondent must be assessed objectively within the context of the work environment. That approach is necessary, especially when  the conduct, viewed within the light of public awareness of what constitutes sexual harassment, is not so grave.  

[203] It is apposite to state at this juncture that the test ought not to be conflated with Dr. Chuang’s professional obligation to his employees or patients. For while a dentist  or other professional might breach her or his professional duty by engaging in a consensual relationship with an employee or patient, that is not a breach of the Code. Similarly, even if allowing Ms Farias to extract teeth or administer certain treatment to patients is a breach of Dr. Chuang’s professional duty that is not a violation of the Code.

[204] Applying the above to the facts, the Tribunal concludes that some  of  Dr. Chuang’s actions constitute sexual harassment; others do not. The acts that do not constitute sexual harassment are dealt with first to show the sequential pattern leading to those acts, which constitute sexual harassment. Those acts must be assessed within the work environment, including the genesis of the working relationship.

[205] Ms Farias states that she found Dr. Chuang’s referring to her as “juicy Lucy”, “sweetheart”, and “honey” caused her to feel “uncomfortable”. In response, she “gave him a disapproving look”. Her evidence is, “he did notice, but [she didn’t] think he understood in [her] opinion.” When he showed her the profiles of naked men and women, who were well endowed, by her own evidence, he seemed to have shown it to her as a joke. While she felt “uncomfortable” and thought his showing her those profiles was a “little odd” (as opposed to objectionable), she did not indicate to Dr. Chuang that his conduct was unwelcome. Similarly, Ms Farias did not tell Dr. Chuang that his consistent calling her at home for chitchats; his invitations to dinner, to concerts and vacation; his awkward overtures of touching and eating her leftover morsel of chicken; and his invitations to lunch were unwelcome. Dr. Chuang’s behaviour must be viewed side-by-side with Ms Farias’ reactions or lack thereof, and Dr. Chuang’s comments as presented by Ms Farias.


Text Box: 2005 HRTO 22 (CanLII)[206] Regarding Dr. Chuang’s continual telephone calls to Ms Farias’ home, there is no evidence before the Tribunal that at the onset, she had asked him to stop calling her. When Dr. Chuang invited her to dinner, Ms Farias’ rejection was in the form as an excuse: she had other plans. Such an answer may leave a persistent  suitor to determine to keep trying until he or she wears down the person into accepting his or her overtures. This is especially true in this case where Ms Farias accepted Dr. Chuang’s Valentine’s Day amorous mementoes and excused herself from a Valentine’s Day dinner invitation by saying she was “going to a friend’s house.” Dr. Chuang’s comment to Dr. Han, which Ms Farias states that she overheard at the lunch in February 2001, (that he, Dr. Chuang, does not handle rejection very well), suggests that he was engaged in a romantic pursuit of Ms Farias. While the inference may be drawn that Dr. Chuang was aware that his overtures were being rebuffed, the Tribunal is not convinced that he interpreted her actions as indications that his behaviour was unwelcome within the context of sexual harassment.

[207] According to Ms Farias’ evidence, from the time she began her employment with Dr. Chuang until sometime in April 2001, she had accepted rides home from Dr. Chuang. During that time, Dr. Chuang had also caressed her around her waist for a “few seconds”; he had given her gifts at Valentine’s Day, which she accepted; he had made “moaning or groaning sounds” and put his arms around her waist in February/March 2001; and had touched her hand while in the operatory. Not conveying clearly that his conduct was unwelcome, and continuing to accept rides from Dr. Chuang likely led him to believe that there was still a chance that his overtures would be successful.

[208] The evidence about Ms Farias’ transportation from work and the incidents, which occurred at least a couple times, when Dr. Chuang was taking Ms Farias home, supports the Tribunal’s conclusion. Ms Farias’ and Dr. Chuang’s reactions to that incident are telling.

[209]  In April 2001, while Dr. Chuang was driving Ms Farias home after work, he  tried to hold her hands. She put her hands in her coat pocket and at that juncture Dr. Chuang put his hand on the “inner part of her thigh”.  Exhibit 1, Tab 5 at p. 2, is a partial journal, which Ms Farias asserts she kept at the relevant time. It states that Dr. Chuang “had put his hand on [her] leg”. The entry for that day is reproduced below, verbatim:

Text Box: 2005 HRTO 22 (CanLII)April 14.01. I’ve decided to ask my dad to pick me up from work from now on. Last Thursday, he drove me home from work and he tryed again to hold my hand, I’m very uneasy & uncomfortable, this way, he can’t anymore and he can’t put his hand on my leg when he drives me home, anymore.


[210] The Tribunal notes that the “Thursday” referred to in the entry was April 12, 2001. The entry was made on Friday, April 13, 2001. The April 13, 2001 entry, which Ms Farias annotates the “first entry”, states: “even the night before he called and asked me to go to Niagara Falls with him shopping he does not take a hint. I have plans is what I told him, and he still called again that day (fri).” There is no mention of the April 12, 2001 incident: no reference to the “touching of the leg”.  On its face, that seems  odd: the journal was Ms Farias’ private record to which no one else had access, a medium where Ms Farias sought refuge to express her feelings candidly. (See para. 76 above).

[211] Ms Farias’ evidence is from that day onward, she did not take any more rides from Dr. Chuang; she took a taxi home or had her father pick her up. In response, Ms Farias states that Dr. Chuang had remarked to her in a sharp angry tone: “You don’t take rides home . . .don’t you like me anymore?” By inference, the evidence connotes that Dr. Chuang felt that Ms Farias had liked him.

[212] On the one hand, by inference Dr. Chuang’s reaction indicated that in his mind, he was engaging in romantic pursuit. It is interesting to note Mr. LaPlante’s diction in expressing his objection to Dr. Chuang’s conduct. He states that it had upset him that Dr. Chuang wanted to date Ms Farias, implicitly, because they were dating at the time.

[213] In this case, the Tribunal is mindful that the perception of the respondent is valid and must be viewed within the context of the work environment. The  Tribunal concludes that within that work environment, Dr. Chuang’s perception was reasonable.


Text Box: 2005 HRTO 22 (CanLII)[214] However, Ms Farias’ refusal to take rides from Dr. Chuang from that day onward, and his awareness of it, ought to have made it clear to him that his behaviour was unwelcome. That ought to have disabused him of any notion he held that Ms Farias was shy, coy or accepting of his overtures.

[215] The Tribunal has given some weight to the Peel Regional Police CASA Unit’s Report entered into evidence by the Commission: Exhibit 1, Tab 12. The initial intake was June 2, 2001: a few days after Ms Farias had resigned.  The investigation concluded on June 26, 2001: months before Ms Farias had filed a formal complaint to the Commission or the RCDSO, and several years before the Tribunal’s hearing on the merits.

[216] The report concluded that Dr. Chuang “did make advances” to Ms Farias, “but at no time” during her employment with Dr. Chuang did Ms Farias “convey to Dr. Chuang that his advances were unwelcome”. Ms Farias was to seek resolution through the Human Rights Commission and the “medical/dental board”.

[217] Based on the evidence, the Tribunal has determined that Dr. Chuang’s conduct after the incident in April 2001 constitutes sexual harassment. The Tribunal concludes that when Dr. Chuang placed his hand on Ms Farias “behind”; when he called her at home the day after that incident and asked her to watch the “Weakest Link” television show, especially after she had set boundaries about calling her at home and how to go forward if she returned to work; when he yelled at her in the presence of her boyfriend when the loonie had fell into her coffee; when he made a complaint to the Peel Regional Police about Ms Farias (in the police’s view “to keep communication lines open”) under the pretext of trying to obtain his office key; and when he kept calling her house after she had resigned from his employment: all those acts have met the  necessary elements of sexual harassment within the rubric of subsection 7(2) and section 9 of the Code.


Dated at Toronto, this 11th day of July, 2005.



“Original signed by Patricia E. DeGuire”

Patricia E. DeGuire Vice-Chair

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