A few jokes and no complaint means no sexual harassment

Worker said he was offended by 3 jokes posted in lunchroom and off-colour comment by manager, but his anxiety was attributable to altercation with co-worker

A British Columbia worker who was offended by a handful of sexualized jokes posted at work but didn’t tell anyone about it was not subjected to sexual harassment, the B.C. Human Rights Tribunal has ruled.

Envirogreen Technologies is a company that provides treatment and disposal solutions for contaminated materials and soils. Headquartered in Langley, B.C., Envirogreen operates a hazardous waste treatment facility in Princeton, B.C. The company operates its waste disposal business from April through December and runs in maintenance mode during the winter months.

The Princeton facility employed mostly labourer positions and the workforce was all male until August 2016, when Envirogreen hired Katrina Graham as facility administrator. At the time, there were 20 men working at the facility.

Michael Clendenning was hired as an excavator/loader operator at the facility in April 2016. His job involved working mostly in the yard and other areas of the premises, and he took his lunch in the lunchroom with other employees. Graham’s office was beside the lunchroom.

New employee posted sexual jokes

After Graham and a new facilities manager were hired, Clendenning felt the culture at the facility began changing and more sexual jokes were being told. On Oct. 4, 2016, a double-entendre sexual joke was posted on a whiteboard in the lunchroom, which offended him as a male. Graham had printed the joke off the Internet and had posted it with the hope it would boost sagging morale stemming from recent changes at the company. However, Clendenning found it to be unprofessional. He claimed he told the facilities manager about the joke, but the facilities manager said it helped morale and wasn’t a big deal. However, the manager later denied Clendenning came to him about the joke.

A week later, on Oct. 12, Clendenning saw a joke posted on the lunchroom refrigerator making another double-entendre about “hump day.” Clendenning was offended again and left the lunchroom after he learned Graham had posted it. He felt women posting such jokes in a male-dominated workplace was unprofessional, so he said he went to the facilities manager, who was dismissive. However, once again the facilities manager denied being aware of the joke and said Clendenning didn’t approach him about it. Graham herself had no-one tell her the joke was offensive, though she noticed afterwards that Clendenning was quiet and didn’t laugh very often.

On Oct. 14, Clendenning entered the lunchroom and saw two co-workers with the facilities manager talking about another off-colour joke posted on the whiteboard. Clendenning felt it was even worse than the previous jokes and asked who wrote it, which the facilities manager responded that he did. As it was more of a visual joke, he had written it on the whiteboard for the other two employees and erased it after a couple of minutes, but not before Clendenning saw it. No other employees were around to see the joke.

On Oct. 27, Graham wrote another sexual joke on the whiteboard. Clendenning saw it and talked to the facilities manager, saying he was offended and it created a sexualized environment. The manager said it was “just a good laugh, not a big deal,” which disappointed Clendenning. Graham erased the joke from the board after about 20 minutes.

A little while later, Clendenning was in a group with other employees when the facilities manager approached them asking “What is this? A circle jerk?” while simulating masturbation. The others laughed and went back to work, but Clendenning said it was inappropriate and walked away.

Clendenning began avoiding others in the lunchroom and eventually had trouble going into work. He developed anxiety requiring medication. On Jan. 18, Clendenning was involvedin an altercation with a co-worker where they had to be separated, and he took one month off work due to stress. He filed a workers’ compensation claim for bullying and harassment by that co-worker, but didn’t mention any sexual harassment. His claim was denied, but he didn’t return to work at Envirogreen.

Envirogreen investigated the altercation and learned that Clendenning had spread false rumours in town about the co-worker and Graham using drugs. Graham prepared a written statement for the investigation that said she had been upset about the rumour and other unflattering things other employees had told her that Clendenning had been saying about her.

Clendenning filed a human rights complaint alleging that he was discriminated against in his employment on the ground of sex. He acknowledged he never asked Graham to stop posting sexualized jokes — he said he was her subordinate, which Graham and the facilities manager denied — but maintained he had spoken to the facilities manager about them.

Graham also said that Clendenning had once given her a ride home in mid-October 2016, but before taking her home he drove her down an isolated road and told her that he found her attractive and they would be good together. Graham told him she had a boyfriend and they had to keep a professional relationship because they worked together, after which Clendenning drove her home. According to Graham, Clendenning told her a second time in December they would be good together when they were alone in a supply room.

Clendenning denied making the comments and said that in the first incident, he was only scouting out a potential hunting spot before driving Graham home.

Worker kept quiet

The tribunal noted that Clendenning said he didn’t inform anyone in management other than the facilities manager or any other employee that he objected to the jokes being posted in the lunchroom. The facilities manager denied being made aware of his objection or that the first two jokes existed, or that Clendenning had a problem with the “circle jerk” comment. It found it wouldn’t be surprising if the manager wasn’t eager to stop the jokes, as they were boosting morale when it had been low. However, the tribunal found it unlikely the manager would have dismissed Clendenning had he approached him as many times as Clendenning claimed he did — it would be more likely the manager would have tried to explain the jokes were harmless and important to morale, said the tribunal.

The tribunal found that the evidence indicated Clendenning didn’t complain about the jokes — he was known to be a quiet person, no other management knew about the jokes, and neither the manager nor Graham said they were aware Clendenning had taken offense.

The tribunal also found that Clendenning’s actions may have been affected by his feelings for Graham. Though he denied the incidents Graham reported, it made no sense for him to drive her down a remote road to scout for hunting spots — he must have wanted to talk to her alone. In addition, the evidence was that Graham handled herself “above reproach” in the incidents and never claimed to perceive any issue between her and Clendenning, said the tribunal.

The tribunal also pointed out that Clendenning’s workers’ compensation claim for stress didn’t mention any sexual harassment, just bullying and harassment from the one co-worker. There was no reason Envirogreen would have known Clendenning felt offended and Clendenning’s departure from the company was related to issues between him and other employees that were unrelated to the fact he was male, said the tribunal in dismissed Clendenning’s complaint.

“I find that, while he may have been offended by the sexual jokes and the ‘circle jerk’ comment, (Clendenning) gave Envirogreen no reason to believe that was the case,” said he tribunal.

For more information see:

• Clendenning v. Envirogreen Technologies and others (No. 2), 2019 CarswellBC 569 (B.C. Human Rights Trib.).

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