No sexual harassment in friendly relationship with sexual banter between workers: B.C. Tribunal

Complaining worker actively participated in banter and there was no harassment in context of relationship with accused harasser

Audacity can test the tolerance of even a liberal human rights tribunal.

Adele Kafer, a long-term sales employee with Sleep Country Canada in Vancouver, had been uniformly successful over her tenure. But her interactions with one colleague, Arif Arjania, were another matter. Kafer alleged Arjania had shouted a derogatory sexual reference at her and he made verbal advances toward her. His last communication suggested she must be gay because she refused his advances.

Kafer complained to her area sales manager and the company sprang into action. Arjania was spoken to, then issued a disciplinary warning he would be fired if it happened again. He also apologized to Kafer.

Sleep Country’s human resources manager urged Kafer to return to work, and suggested the company would use the issues she had raised to train staff. Rather than being reassured, Kafer felt threatened by this suggestion, believing other staff would recognize the incidents related to her. As result, Kafer left on sick leave, never to return. She then filed a complaint of sexual harassment and discrimination on the grounds of sexual orientation with the British Columbia Human Rights Tribunal against both her employer and Arjania.

Sleep Country candidly acknowleged Kafer had worked in stores where sexually explicit banter and innuendo between staff were considered reasonable social interaction. Significantly, she had not merely tolerated this conduct but had actively participated in and even instigated it at times. Eleven affidavits from co-workers were filed detailing vivid examples of Kafer’s contribution to the crude conversations.

Arjania too was straight-up, readily admitting he had made sexual comments directed at her but claimed they were made between two friendly co-workers who historically engaged in this kind of banter. And he had immediately apologized to Kafer when he learned she had taken offence.

Kafer, in return conceded she had engaged in sexual banter with co-workers, including Arjania, and had made explicit sexual references during those discussions. However, she maintained she did not have to tolerate Arjania’s emails alluding to her sexual orientation.

Arlene Tyshynski, vice-chair of the tribunal, reviewed the evidence and dismissed Kafer’s complaint. In light of the overwhelming evidence that Kafer had actively participated in crude sexualized exchanges, no reasonable person would believe Arjania’s comments would be unwelcome, said Tyshynski. The tribunal noted that Kafer and Arjania otherwise had gotten along well. Kafer had asked that Arjania be transferred into her store and then proceeded to confide in him her sexual interests. In the context of their relationship, sexual harassment and discrimination could not be shown.

Tips for employers

Sleep Country’s experience in avoiding the wrath of the Human Rights Tribunal can be instructive for other Canadian employers.

• Clean up your workplace. It is no defence to say your workplace has a crude and sexualized bantering culture. Such an admission is usually dispositively damning. An employer has an affirmative obligation to provide a workplace free of sexual harassment.

• Institute a policy. Define what behaviours are prohibited; create an internal complaint mechanism; make it clear violations will not be tolerated and that repercussions include dismissal for just cause.

• Promptly and effectively investigate. On receipt of Kafer’s complaint, Sleep Country immediately investigated the complaint, disciplined Arjania and reassured Kafer it had addressed her concerns.

• Train staff. Sexualized work environments are breeding grounds for lawsuits. The best antidote is to meticulously outline what type of exchanges are prohibited.

• Refrain from retaliation. Assure the complainant her job and status are not threatened. Although Kafer had not returned from her sick leave, the tribunal noted that her job awaited her.

For more information see:

• Kafer v. Sleep Country Canada and another (No. 2), 2013 BCHRT 289 (B.C. Human Rights Trib.).

Howard Levitt is a senior partner with Levitt and Grosman LLP, an employment and labour law firm in Toronto. He is the author of The Law of Dismissal in Canada, The Law of Dismissal for Human Resources Professionals and the Dismissal and Employment Law Digest, all published by Canada Law Book. Howard can be reached at (416) 594-3900 or [email protected].

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