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Queen's University
 

Bell

What is sexual harassment?

Facts

In 1977, two waitresses filed a complaint of sexual harassment against their boss,  the manager of the Flaming Steer Restaurant. They claimed that he had fired them because they had refused to sleep with him. He claimed that he had fired them because they were incompetent. An Ontario Board of Inquiry found that the complainants, Bell and Korczak, were not credible witnesses. Moreover, an independent witness, a fellow employee, offered credible testimony supporting the claims of the manager, according to whom the women had been fired for job-related incompetence.  On a balance of probabilities, Chairperson Shime found that the respondent had not sexually harassed the complainants. However, his decision presented a useful definition of sexual harassment as well as a set of principles equating sexual harassment to sex discrimination. (Re Bell and Karczak 27 L.A.C. (2nd) 227 Ontario, O.B. Shime Q.C., August 12, 1980)

Question:

  • Is sexual harassment tantamount to sex discrimination ?

Ruling

  • Yes

Reasoning

  • Whenever sexual compliance becomes a condition of a woman's employment,  she has become the victim of sexual harassment and sex discrimination. Sexual harassment, which has many faces (from inappropriate comments to sexual intercourse), often,  but not always, has economic consequences (hiring, firing, promotion and professional development) and always creates a negative psychological and emotional work environment. It is always an abuse of power, it is always wrong and it is always discriminatory (even if it affects only one employee).

Comment

Bell (1980) is a precedent-setting Canadian case involving sexual harassment. For almost a decade, its interpretation of sexual harassment as a form of sex discrimination was adopted by legislative bodies at all levels across Canada.  Janzen (1989), the first sexual harassment case to reach the Supreme Court of Canada, reinforced the principles set forth by Chairperson Shime in Bell. The Supreme Court disagreed with a Manitoba Court of Appeal, which argued that sexual harassment amounted to sex discrimination when, and only when, the employer harassed all female (or all male) employees. The Supreme Court upheld the principles set forth by the Ontario Board of Inquiry when it said that every case of sexual harassment is a case of sex discrimination. If an employer sexually harasses one employee, he has discriminated against him or her,  at least in part, on the basis of his or her gender. In some provincial codes, sexual harassment is not mentioned specifically. In the past, some perpetrators charged under these codes were found not guilty of sexual discrimination and were not punished. The Supreme Court ruling makes it very clear that any occurrence of sexual harassment in the workplace is an act of sex discrimination.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000