The historic fight against sexual harassment (Guest Commentary)

2 Winnipeg waitresses — fed up with actions of cook and inaction of management — filed complaint in 1982 that went all the way to the Supreme Court
By Stephen Hammond
|Canadian HR Reporter|Last Updated: 08/15/2011

In August 1982, Dianna Janzen took a waitressing job at Pharos Restaurant in Winnipeg. While taking a full course load at university, she hoped to work full-time so she could live on her own and pay for school. But early on, the cook — Tommy Grammas — began grabbing her and making sexual advances.

Janzen made it clear, “in no uncertain terms,” his actions weren’t appreciated and tried to deal with it on her own. After one month of futile attempts with the cook, she spoke to the owner who hired her, Phillip Anastasiadis.

His reaction? He told her, rudely, she needed to get laid. That’s when she started to doubt herself.

“My feeling at that point was, ‘Oh my gosh, there really is something wrong with me, that I’d be so bothered by what was happening.’ So I held my ground with the cook. I let him know that I wasn’t interested and I just wanted to do my work but I felt that, at every turn, I was being sabotaged and not being able to perform my duties.”

Janzen felt the same way many women feel when they don’t get support and, therefore, doubt themselves. For quite some time, even after the case was long settled, she wondered: “If I’d only done things differently. If I hadn’t worn that skirt or if I hadn’t smiled that way or if I hadn’t been so trusting. If I had been different or smarter, none of this would have happened. And I did blame myself.”

But Janzen needed a job so she endured the behaviour for two months before quitting. Why didn’t she walk out sooner?

“Because I was naive, because I was young, because I was stupid, because I was putting up with a lot of stuff, because I didn’t know my own rights,” she said. “I did know that I had a right to my own body, I have a right to my own thoughts, I have a right to work without being harassed like that and I thought that if I could put a stop to it, that I could still continue in this job that I thought was ideal for my situation at that time. Unfortunately, that didn’t happen.”

Sexual harassment was, and still is, prevalent in many workplaces but few people are willing to take the simple step of picking up the phone to contact a human rights commission or tribunal. Yet Janzen did. And so did fellow Pharos waitress Tracy Govereau, though the two women hardly knew each other.

Despite all they went through, after the appeals were done, Janzen only ran into Govereau once on the street, never seeing her again.

Initial damages deliberately large

The damages awarded don’t seem like much by today’s standard but, at the time, they were groundbreaking. For loss of pay and exemplary damages, Pharos was ordered to pay Janzen $3,980. For Govereau, it was $6,000 as she was out of work longer.

Adjudicator Yude Henteleff deliberately made the damages large, which caught the media’s attention.

“I didn’t exaggerate the damages but I wanted to make people aware of the psychological damage involved with sexual harassment and that it will cost (employers) lots,” he said.

Pharos appealed the ruling. While Manitoba Court of Queen’s Bench Justice Michel Monnin (now on Manitoba’s Court of Appeal) agreed with the adjudicator’s decision, he knocked the award down to $1,480 for Janzen and $2,000 for Govereau.

Manitoba court ‘amazed’ employer responsible for workers’ actions

Pharos appealed again, saying it shouldn’t be legally responsible, while Janzen and Govereau cross-appealed, feeling the original damages should be restored. When the case reached Manitoba’s top court, Justices Charles Huband and Kerr Twaddle (now both retired) came down with a decision that surprised many.

Huband was “amazed” an employer would be responsible for the actions of its employees and also “amazed” sexual harassment could be considered discrimination based on sex. Twaddle drew very distinct and exact legal lines in the sand, referring to “sex appeal” and “random selection” but, basically, said it’s “nonsense to say that harassment is discrimination.”

Their ruling was in complete contrast to numerous Canadian courts, including two top courts from other provinces. Janzen thought the court’s decision was out of touch.

“I think one of the judges in his statement had actually compared what I had gone through to a boy pulling my pigtails in the classroom and I thought, ‘He just doesn’t know,’” she said. “Yes, I was a waitress and, yes, it’s considered a lower-level job, but I’m not stupid and I’m trying to interpret their judgment and, to me, it was ridiculous.”

By this time, more than four years had passed since Janzen quit her waitressing job. But she — along with Govereau, the Manitoba Human Rights Commission and the Women’s Legal Education and Action Fund (LEAF) — decided to go to the Supreme Court of Canada.

On May 4, 1989, almost seven years after she first began work at Pharos, Janzen and Grovereau were told by the Supreme Court of Canada: yes, they were sexually harassed; yes, sexual harassment is a form of sex discrimination (and, therefore, illegal); and yes, employers are responsible for employees’ actions.

But, more than that, the court gave employers and employees a liberal, unrestrictive definition of sexual harassment that was instrumental in capturing more and more behaviours as unwelcome and against the law.

“The real impact didn’t strike me until it was explained to me what this meant for my children, for the neighbourhood kids, for people who are in the same situation that I was in,” said Janzen. “I did what I thought needed to be done. And, looking back, maybe there was a little bit more fight in me than I thought. It’s nice to have been able to accomplish something like this or been a part of it because I didn’t accomplish it alone.”

While Aaron Berg (now senior counsel for the Manitoba government) never met either women as he took the case for the commission to the Supreme Court of Canada, he said what Janzen and Govereau did was significant. Up until that time, sexual harassment was not completely defined and the application of the law was uncertain.

“It was the first Supreme Court decision on this that adopted an approach that human rights proponents had been pushing for some time,” said Berg. “The impact on people across the country since 1989 has been profound.”

The impact Dianna Janzen had on human rights in this country can never be underestimated, said Dianna Scarth, executive director of the Manitoba Human Rights Commission. “She showed how one person filing a complaint can benefit hundreds of thousands.”

Janzen has hardly talked about her fight but she’s turning 50 this year and is able to look back on it now with perspective.

“At 21, I was a failure and a victim. I’m not that anymore — I’m successful, I’ve achieved something with my life beyond the Supreme Court decision and maybe even because of it,” she said. “I did get my happily ever after. It was a long road that took its toll. I laughed more than I cried and made more good choices than bad choices.”

In particular, she wants to tell her story, especially to young people who are still so vulnerable and, in many ways, still enduring the kind of abuse she endured.

“My best advice is to trust yourself,” she said. “One of the things that really freaks me out is when I hear people say the words, ‘I don’t have any choice.’ There’s always a choice even if you don’t see it. I want them to know they don’t have to be afraid whatever choice they make, it’s going to be the right one for them. If they’re choosing to quit a job, there are ways to find support, to deal with their situation.”

‘So not about the money’

As for the awards Janzen said it was not about the money. When the process was all said and done, she got a call from someone saying the clock was ticking for her to go after the money — and she declined.

“The win was the win and that’s all that mattered. The dollars attached to it were irrelevant and, in terms of what it represented, it’s curious to me that anybody would be successful in trying to put a dollar amount to it,” she said. “And the other point is that it was an award and it wasn’t a reality. I’ve never seen a penny of that. It was to make a point, it wasn’t to be punitive. And I think it did make a point.”

Canadian women, in particular, have Janzen and Govereau to thank for stepping up when so few were willing to do the same. They are an example of what an arduous process it can be to fight the indignity of trying to do a job when being sexually harassed. But thanks to their willingness to fight, against all odds, the laws are now in place.

Stephen Hammond is a Vancouver-based speaker, author and educator in the field of workplace and community human rights. You can listen to a one-hour interview he conducted with Dianna Janzen on his website, www.stephenhammond.ca.

Add Comment

  • *
  • *
  • *
  • *