Northern Exposure

Is sexual harassment discrimination if there is no evidence of differential treatment?

By Charles Harrison

The answer to the question in the title is yes, a Canadian court confirmed recently.
Sexual harassment is discrimination. Overturning a decision of the British Columbia Supreme Court, the British Columbia Court of Appeal recently clarified that evidence of unwelcome conduct of a sexual nature is alone sufficient to establish discrimination on the basis of sex.

That decision overturned a lower court decision that had held that the harassment of a female couldn’t be found to amount to sexual discrimination without evidence that males were treated differently.

In Friedmann v. MacGarvie, the female tenant rented an apartment for just under one year. During that time, she was subject to incidents of inappropriate behavior on the part of the landlord in the nature of gifts, sexual comments, and inappropriate touching. Eventually, she left the apartment. She also filed a complaint with the British Columbia Human Rights Tribunal claiming both discrimination on the basis of sex and sexual harassment by her landlord.

The BC Human Rights Code doesn’t define sexual harassment as a category for complaint apart from the prohibition on sex discrimination. However, because the tenant had made separate complaints of sex discrimination and of sexual harassment, based on a variety of different incidents, the tribunal dealt with the sexual discrimination complaints first as a separate topic.

The tribunal found that the tenant had failed to establish that she was treated differently than male tenants. Therefore she had failed to prove sexual discrimination independent of the harassment complaints. However, relying on the 1989 Supreme Court of Canada decision in Janzen v. Platy Enterprises Ltd., the tribunal went on to find that the inappropriate, harassing behavior of a sexual nature amounted to sexual harassment. That breached the code’s prohibition of sex discrimination without the need for further evidence of differential treatment.

In a review by the BC Supreme Court, the judge disagreed. He set aside the tribunal’s decision. He rejected the tribunal’s conclusion that there could be a finding of sexual discrimination through harassment against a woman where there was no proof of differential treatment toward men.

The court of appeal restored the decision of the tribunal. It reaffirmed that the Supreme Court of Canada’s decision in Janzen stands for the proposition that sexual harassment constitutes discrimination on its own. One does not require proof of differential treatment on the basis of sex.

In a sexual harassment case, the very nature of the sexual harassment can be sufficient to establish that the gender of the complainant was a factor in the adverse treatment.

Since Janzen arose in the employment context, the court also considered whether or not the reasoning in that case applied equally to the prohibition against discrimination in tenancies. It concluded that it did. The court explained that tenants are entitled to quiet possession of their rented property. That is essentially the same right as the right of employees to have a workplace free from sexual harassment.