By Lauren Marshall, volunteer
Background
An account manager at a software company alleged the company discriminated against her based on sex/marital status. The account manager alleged many incidents over a seven-year employment period, including physical actions and being treated differently by colleagues. The manager argued she had no choice but to leave her job because leadership did not take the incidents seriously.
The Human Rights Complaint
This complaint fell under Section 13 of the Code, which deals with employment discrimination. To prove her claim for employment discrimination based on race, the officer had to prove the following points:
1) That she was protected under the ground of sex and/or marital status. A “ground” under the BC Human Rights Code is a personal attribute or trait like race, religion, or gender identity.
2) That she experienced a negative impact in her employment.
3) That her sex and/or marital status was part of the negative employment impact that occurred. A protected ground does not have to be the only factor that led to negative treatment.
The account manager had to prove those three factors “on a balance of probabilities”. This means that each of the three factors were more likely to have happened than not have happened. “Balance of probabilities” is the standard of proof in discrimination cases.
Factor 1, the protected ground of sex and marital status, were not disputed. The following allegations were proven to have been discriminatory by the account manager:
a. An employee hit the account manager’s buttocks with keys sometime before 2013,
b. An employee put the account manager in a headlock sometime before 2013,
c. An employee slapped her hand in 2014,
d. An employee hit the account manager on the head in February 2014,
e. An supervisor gave a “love language” questionnaire to the account manager in October 2015,and
f. an employee slapped her hand again a day before she left her job in October 2017.
With regards to the two slapping incidents, the tribunal said that when there is a power imbalance between a man at the top of the company and a female subordinate, uncomfortable feelings about a hand slap between them are likely to be in part because the subordinate is a woman. This shows the connection between sex and the negative impact on work. Even though the employee said the slaps were just jokes, the tribunal focused on how the account manager felt about the incidents. The tribunal said their finding was supported by the fact that there was no evidence the employee slapped the hands of any male employees.
The sending of the “love language” questionnaire was found to be discriminatory on the basis of sex and gender even though the supervisor received the questionnaire from a global leadership organization. The tribunal said that even if the questionnaire was taught at a training session, it does not mean the questionnaire meets the obligations under the BC Human Rights Code in a work context. Importantly, the questionnaire was only given to three female employees and not the men. The questionnaire was connected to the account manager’s identity as a single woman, particularly because it was only distributed to women, and because the version of the questionnaire she received was labelled for “singles”.
For the physical incidents, the tribunal also found them discriminatory. The conduct of the employee during these institutes did not constitute a normal social or friendly interaction. The tribunal also found there was a gendered power imbalance because the employee was a much larger man and the account manager was a smaller woman. Even though the company suspended the offending employee for three days, the company was still responsible for the employee’s discriminatory actions.
Credibility
Both parties raised the issue of “credibility” in this decision. “Credibility” is how sincere and accurate a witness’s testimony is. There are various factors that courts use to assess credibility, like whether there are multiple inconsistencies or if someone’s explanation for something is not logical.
The software company argued that the account manager was not credible because she exaggerated incidents to be out of proportion with what actually happened. The account manager, on the other hand, said the company’s witnesses were not credible because they did not admit to their mistakes and did not properly produce documents.
The Tribunal found that the account manager was mostly truthful but sometimes unreliable. This was because the tribunal thought the account manager was likely unconsciously reconstructing history in a way that was helpful to the outcome she wanted rather than deliberately lying.
As for the witnesses from the software company, they were mostly found to be credible. Some of their evidence was not helpful to the tribunal since they did not directly witness events. One witness was not found completely credible, but the tribunal could still consider some of the evidence that was found believable.
Gender Discrimination in the Workplace
The Tribunal described sex or gender discrimination in the workplace as “practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.” They defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment”.
Disclaimer
The VIHRC blog is for informational purposes only and is not intended to be legal advice.