sex discrimination

Human Rights Tribunal Finds Employee Subjected to Work-Related Disadvantage due to Pregnancy, Orders Employer Pay Over $78,000

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In a decision issued on July 29, 2022, LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal held that an employee of NLFD Auto dba Prince George Ford experienced work-related disadvantage due to her pregnancy and family status. This constitutes sex discrimination in accordance with human rights law in BC.

Tribunal Member Amber Prince introduced the tribunal decision with the following paragraph:

For over 30 years the law in Canada is clear: a pregnancy should not lead to work‐
related disadvantages: Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 [Brooks]. 
Discrimination based on pregnancy undermines substantive equality along gendered lines. In 
this case, Mellissa LaFleche suffered a work‐related disadvantage because she was pregnant. 
She filed a complaint to this Tribunal seeking redress. 

According to the decision, the complainant employee started working at Prince George Ford in 2015. She became a marketing manager around December 2016. She went on maternity leave in May, 2018, during the later stages of her pregnancy. The complainant asserted she was terminated from her employment while on maternity leave. The respondent asserted that she could have returned to work, but abandoned her position. The tribunal held that she was removed from her marketing manager position while on leave, and; thus, she was constructively dismissed. As such, Prince George Ford discriminated against her as her employer based on her sex and family status contrary to section 13 of the BC Human Rights Code.

The tribunal held that someone was hired expressly and temporarily to fill the complainant’s position while she was on maternity leave. The Complainant had a meeting with representatives of Prince George Ford while on leave. The meeting led her do believe that her job duties were being changed as a result of her absence to such an extent that she was being constructively dismissed. One of the main factors leading to this conclusion was that the employee previously hired to covered the maternity leave was set to stay on permanently in the role.

The tribunal held that the complainant experienced an adverse impact in the complainant’s employment for the following reasons:

  1. She was removed from her marketing manager position;
  2. She was humiliated during the meeting where she was told her duties would change;
  3. She was constructively dismissed.

The complainant did not do anything to try and return to work after she was given the impression that her duties were being changed; however, according to the tribunal, it was not her job to:

[58] It was not Ms. LaFleche’s responsibility to mitigate the position Ford unilaterally put her 
in: an atmosphere of humiliation from being removed from her marketing manager position; a 
reasonable perception that Ford did not really welcome back; and an uncertainty of what 
position if any she would return to at Ford: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 
(CanLII), [2008] 1 SCR 661 at para. 30, cited with approval in Morgan‐Hung v. Provincial Health 
Services and others (No. 4), 2009 BCHRT 371 [Morgan‐Hung] at paras. 464‐465. 

[59] The adverse impacts that flowed to Ms. LaFleche, as a result of not being returned to 
her marketing manager position lay at Ford’s feet: Morgan‐Hung at para. 463. 

After finding that discrimination occurred, the Tribunal considered remedies. It awarded the complainant $12,000 for injury to dignity, feelings, and self-respect. It awarded over $66,000 in lost wages after reducing the award by the amount that her employment standards act complaint settled for. This covered a period of time that she was not able to work or find work and that she missed out on maternity and parental leave EI benefits while parenting her second child.

BC Human Rights Tribunal Dismisses Employee’s Sex Discrimination Complaint Against VIHA

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In a decision issued by British Columbia Human Rights Tribunal Member Devyn Cousineau on March 1, 2022 following a three-day hearing from December 6-9, 2021, an employee’s sex discrimination complaint against the Vancouver Island Health Authority (“VIHA”) was dismissed.

Complainant Suzana Kalyn had a history of making two prior human rights complaints against VIHA, and the tribunal noted at paragraphs 24 and 116 that her decision to do so was not made lightly. Her first complaint against VIHA was for terminating from her position in a male-dominated department due to her “gossiping” and generally being tenacious in raising concerns about discrimination regarding herself and other women (the “First Complaint”). In a decision issued on October 9, 2008, the Tribunal found that Ms. Kalyn’s sex (her identity as a female) was a factor in her termination. It ordered that her position as a protection services officer team leader be reinstated.

Ms. Kalyn made another complaint in the Human Rights Tribunal about VIHA reorganizing and changing her position in 2015 (the “Second Complaint”). Not much information about the Second Complaint is publicly available, as it was ultimately settled.

Ms. Kalyn continued working for VIHA. She oversaw dozens of protection services officers in the south island region. Since her return following the First Complaint, she wanted to advance in VIHA. She sought mentorship and was told that most people moving forward in management roles had Master’s degrees. So she obtained one from Royal Roads University in Health Leadership in 2014. Subsequently in 2014, she applied for a position posting at VIHA titled “Manager, Protection Services.” She was interviewed; however, she did not get the job. It was awarded to a man.

She later applied for 12-14 more positions with Island Health that she was not awarded. Island Health argued that it was because she was not qualified.

In November, 2018, the man who was previously awarded the position of “Manager, protection Services” in 2014 vacated the position. Ms. Kalyn applied. She met all of the qualifications for the position. The Executive Director had Ms. Kalyn and her colleague, who was also a team leader, share the responsibilities of the position while the hiring process was conducted. Both she and her colleague applied. He was a man who did not have a Master’s degree. He was ultimately awarded the position. The job posting required a Master’s degree or “equivalent” experience. VIHA argued that the colleague had equivalent experience. Ms. Kalyn argued that he did not.

Ms. Kalyn and two other applicants, including her colleague, participated in interviews. The interview panel ranked Ms. Kalyn’s performance last out of the three.

The Tribunal held the following about job interviews at para 95:

Interview and hiring processes always carry a degree of subjectivity, and as such are ripe
for unconsciously biased decision making that can favour certain types of applicants over
others. Ageism and sexism are two commonly held biases, as is the bias that tends to associate
white, cisgender, men with strong leadership. While it may not be realistically possible to completely eliminate biases from a hiring process, there are ways to mitigate their potential impact – a number of which were employed in the hiring process at issue here.

The Tribunal summarized its findings as follows:

[104] I understand why Mrs. Kalyn believes that discrimination was a factor in the decision. 
She has worked hard to improve her qualifications and advance within the organization. The 
Position at issue in this complaint is perhaps the management role she is best qualified for, and 
she was humiliated when it was awarded to her younger male colleague. In light of her history 
with Island Health, and feeling that her advancement has not been supported, she reached the 
conclusion that this was another manifestation of discrimination in her employment. 

[105] However, viewing the evidence as a whole, I am not satisfied, on a balance of 
probabilities, that Mrs. Kalyn has proved that her age and/or sex were a factor in the decision – 
consciously or unconsciously. I accept Island Health’s non‐discriminatory explanation as a 
complete explanation for the decision to prefer Mr. L and Mr. Clarke over Mrs. Kalyn. The 
allegation of discrimination is dismissed.

Survivor Stories Project Shares Multiple Accusations of Sexual Harassment, Abuse, and Assault Perpetrated by Former Victoria Restaurant Employee

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image property of https://vancouverisland.ctvnews.ca/victoria-restaurant-fires-employee-following-allegations-of-sexual-assault-1.5291169

TW: sexual violence

On January 31, 2021, the Survivor Stories Project began sharing multiple stories of anonymous people claiming to have been sexually harassed, abused, or assaulted by a former employee at Chuck’s Burger Bar in Victoria. Thirteen accounts have now been published on the Survivor Stories Project instagram page. The stories allege that the Chuck’s Burger Bar employee acted in a predatory manor, coercing them into becoming highly intoxicated or drugged, or drugging their drinks. According to many of the accounts, the employee would then bring the women to his home and sexually assault them.

Chuck’s Burger Bar has made two posts on it’s social media regarding the allegations and has received many negative comments in response. Most recently, Chuck’s stated publicly that they have terminated the employee.

The Victoria police have also taken to social media to state that they are ready to hear survivors about the alleged assaults.

MacIsaac & Company is currently investigating potential claims regarding this matter.

Tribunal Awards Over $38,000 Damages to Esquimalt Denture Clinic Employee Fired Following Sexual Harassment

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sexual harassment at work, office woman and her lustful boss

In reasons released for the case of Basic v Esquimalt Denture Clinic and another, 2020 BCHRT 138 on July 7, 2020, BC Human Rights Tribunal Chair Diana Juricevic held that the Complainant Jasmine Basic was sexually harassed by her employer Andrew Lee at an Esquimalt, BC Denture Clinic and that this harassment was a factor in the termination of Ms. Basic’s employment. This constituted discrimination based on sex and Mr. Lee and his clinic were ordered to pay Ms. Basic over $38,000 in damages.

Ms. Basic had been employed as a receptionist at Mr. Lee’s Esquimalt Denture Clinic Ltd. While at the clinic, Mr. Lee engaged in a extensive conduct of a sexual nature. The conduct is outlined by the Tribunal at paragraphs 94 and 95 of the decision as follows:

He repeatedly commented on the size of her breasts and asked whether her “boobs” were fake. In the context of one conversation, he remarked that she was so attractive that she would likely be sexually assaulted in another workplace. He complimented parts of her body – skin, legs, breasts – and overall appearance.

…..

[95] Mr. Lee also engaged in physical conduct of a sexual nature. Mr. Lee slapped Ms. Basic’s butt with a magazine. He repeatedly grabbed her breasts and looked down her shirt. On one occasion, he tried to look down her pants. He hugged her, rubbed her back, rubbed her leg, rested his head on her shoulder, and kissed the top of her head. He pressed his body up against hers when she was putting away an air compressor. He pulled her onto his lap when she was trying on scrubs.

The case largely turned on whether Mr. Lee’s conduct was unwelcome. Mr. Lee argued that the interactions were consensual in the context of an intimate personal relationship. Regarding this issue, the Tribunal held as follows at paragraph 118:

As explained further below, I have no difficulty reconciling the facts that Ms. Basic enjoyed many aspects of working with Mr. Lee, shared personal information, and at the same time, did not welcome his sexual advances.

Mr. Lee asserted that Ms. Basic sexualized the workplace by engaging in sexualized behaviour and wearing provocative attire. Those arguments were rejected, partly because it is a “myth or stereotype that ‘promiscuous’ or ‘party’ individuals are more likely to consent or less worthy of belief.” Ultimately, found the Tribunal, Ms. Basic was touched sexually by Mr. Lee, she told him to stop, and he persisted.

All of this sexual harassment, held the Tribunal, resulted in Ms. Basic being immersed in a poisoned work environment and terminated.

The Tribunal made the following damages awards against Mr. Lee and his clinic:

  1. $11,796.04 for wage loss and wage differential that flowed from the discrimination;
  2. $1,612 for expenses associated with the hearing; and
  3. $25,000 for injury to dignity, feelings, and self-respect.

Employee Awarded Over $23,000 for Employer’s Withholding of Work when Jealous of her Sexual Relationships with other Men

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Young woman on scaffolding by roof

Tribunal Member Emily Ohler issued her reasons on June 10, 2020 for allowing a woman’s complaint regarding sexist discrimination in employment and retaliation.

The complainant LL had worked for a roof repair company from 2009 to 2017. She and the owner of the company, DM, began a personal, sexual relationship around 2011. Following an eight-day hearing, the Tribunal held that although DM did not exploit LL’s reliance on him for work by making work conditional upon her having sex with him, he did “impose adverse employment-related consequences on LL for issues arising from their personal relationship rather than the employment sphere,” and that LL’s sex was a factor in these consequences. The Tribunal also held that DM retaliated against LL in breach of section 43 of the BC Human Rights Code by texting a link to a pornographic video LL appeared in to her cousin and others.

DM had a wife who did not like LL. At some point, he apparently confided in LL about his unhappiness at home with his wife. And then the relationship between LL and DM began. LL’s evidence was that she never enjoyed having sex with DM or wanted him to leave his wife for her, but went ahead with the relationship because she thought she needed to in order to work for DM. DM’s evidence was that LL was a manipulator who used her sexuality to exploit him for financial and other benefits.

At paragraph 72, the Tribunal stated the following about the facts:

While I accept that LL exercised a high degree of autonomy and independence in her own life as well as in her relationships with the Respondents, as I will discuss further below, it is clear to me that DM understood how to exercise his own kind of control in the relationship when he became jealous or had his feelings hurt. As I will discuss, he did so by not showing up when LL counted on him, reclaiming the cars that he had given her, or – central to this complaint – withholding work.

At paragraphs 134 and 135 of the decision, the Tribunal Member sets out how DM imposed adverse employment-related consequences on LL when he was jealous about her having other men in her life:

[134] I do, however, find that there were occasions on which DM withheld work from LL when he became jealous or his feelings were hurt. On this point, I accept that LL sought to ‘keep DM happy’ in the relationship in part to avoid such repercussions. While it is undisputed that she derived a number of benefits from the personal relationship, I accept that she could not have normal relationships with other men in the way that she wanted to and that the possibility of a
fight with DM impacting her work adversely impacted her.

[135] In particular, on a balance of probabilities, in the context of the evidence of both LL and DM, and LL’s journal entries, I find that on the day of the February 2016 Incident in 2016, and on September 22, 29, and October 22, 2017, DM either did not pick LL up or did not tell her about where to go for work, and that he did this specifically in response to his feeling jealous about other men in LL’s life.

The tribunal stated the following about why these actions were in breach of the Human Rights Code:

[175] I am satisfied that LL has met her burden on a balance of probabilities in establishing that she experienced an adverse impact in her employment related to her sex. In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 [Araniva], the Tribunal found that an employer’s decision to reduce an employee’s hours of work because the employee declined an invitation to socialize with him constituted a breach of s. 13 on the basis of sex. Here, DM’s jealousy over LL’s sexual relationships with other men cannot be extricated from her sex. DM imposed employment‐related consequences because that was one place where he had power
over LL when his feelings were hurt in their personal relationship.

…

[181] While I have not found that DM coerced LL into sex with the promise of work, I do find that DM periodically withdrew or withheld work when he became jealous or, in his words, his feelings were hurt, by LL’s standing him up or being with other men. This is, in fact, undisputed. DM explained that he loved LL, and so his feelings would be hurt when LL spurned him by not seeing him or by seeing someone else. DM would deny LL work simply because he stopped speaking to LL entirely during these periods when his feelings were hurt. This is not a defence, but an admission. DM was the boss. If DM’s feelings got hurt because he loved LL, with whom he was in a sexual relationship, it was his responsibility to put those feelings aside and treat LL fairly in the workplace regardless.

After LL filed the complaint, DM sent her cousin a pornographic video that she had appeared in many years ago when she was 19 years old. He knew the video upset her and would bring it up when he was angry at her.

Ultimately, the Trinbunal awarded LL $640 damages for the days it ruled she was denied work due to DM’s jealousy. It also awarded the complainant $15,000 for injury to her dignity, feelings, and self-respect in relation to the discrimination complaint and $7,500 for the retaliation.

The Tribunal stated the following about the retaliation damages:

It takes courage to file a complaint. In particular, LL’s complaint required her to publicize highly private, intimate details about her life. I view DM’s actions, taken in the context of his comments that the video showed people that LL is a “nasty” person, as depending upon and looking to further stereotypes about women generally and sexually active, sex‐positive women in particular. He wielded this as a weapon in response to his anger about LL’s complaint. Such actions must be discouraged.