July 2005 Edition
Getting it Right in Human Rights

The restaurant industry does not often figure prominently

in legal history, but the sexual harassment law in

Canada began with two Winnipeg waitresses.

 

“The case law that acknowledged sexual harassment as a form of gender discrimination arose out of a restaurant,” says Brenda Taylor, director of the Human Rights Office at Simon Fraser University.

The case, which wended its way through the court system all the way to the Supreme Court of Canada, was decided in 1989. Two waitresses who had been harassed by a cook were awarded compensation for lost wages in addition to a total of $2,500 in damages.

“What made sexual harassment law in this country was a restaurant case,” Taylor says. “So it’s something that restaurant owners should know about. They should

know what to do when it happens, they should have a transparent, clear process for dealing with it, a way of investigating it, and they should make sure their employees know they have rights under provincial law, and they have the right to not be discriminated against and to not be harassed.”

The laws Taylor is referring to are provincial human rights codes. While they vary somewhat from province to province, they are similar in many ways, including most of the basics: In the areas of employment, provision of public services and facilities, sale and rental of land, or publication, it is prohibited to discriminate on the basis of race, religion, colour, creed, national ethnic origin, mental or physical disability, gender or sexual orientation.

That’s a bit of a mouthful, but Taylor says the important part is the principle that people are entitled to work in environments that are free from the effects of discrimination and harassment.

“If there is discrimination being targeted by employee to employee, or by a manager to an employee, the person responsible for the workplace has an obligation to take that in hand, to have measures to resolve or to correct or to remedy the situation,” Taylor says. “It doesn’t matter if it’s a mom and pop—a tiny little café, for instance—or

a big national chain. The size of the employer doesn’t matter—what matters is when people come to work, the law says that there are certain behaviours that they do not have to put up with.

“Those behaviours include discriminatory behaviour, and behaviour of a sexual nature that is persistent, that targets an individual, that is unwelcome such that the person engaging in the behaviour knows or ought reasonably to know that it’s unwelcome,” Taylor says.

In businesses that deal with the public, occasionally situations arise in which an employee is harassed by

a customer.

“That is a bit different legally, because there would not be the same jurisdiction in terms of where human rights law applies,” Taylor says. “But basically the employer would be expected to deal with it and to bring it to an end to ensure that the person had a harassment-free environment.”

In the case of a customer, the solution might be as simple as having a manager take over the service on an offending customer’s table. Internal issues may not be as simple, and may require action such investigation or mediation.

Taylor stresses the importance of having a process in place to deal with issues when they arise. Employees should be familiar with this policy or process.

“It has to be a transparent process and people have to have faith that they’ll be dealt with fairly—not just the complainant, also the respondent,” she says. Taylor administers the employment equity policy and the human rights policy at Simon Fraser University, and in doing so must be completely impartial.

“People who are alleged to have done something wrong must have an opportunity to respond and they must have an opportunity to make their own representations, and they must have an opportunity to address the complaint,” she says.

It’s important, she adds, for all parties to feel that their interests are protected within the process, so the person hearing the complaint cannot be an advocate for either party.  She also says that employers of all sizes can and should have policies on these issues.

“I know that smaller employers don’t have necessarily the time or the money… to develop really sophisticated employment policy,” she says. But it’s a good idea for employers to be aware of their obligations under human rights legislation, to let people know what is acceptable and unacceptable behaviour in the workplace. Also, employees should be made aware that reports of unacceptable behaviour will be taken seriously, will be investigated and addressed.

“Keep reinforcing that until it becomes the culture. And you don’t need to be a big organization to have that happen,” Taylor says. “Even in big, rich corporations with fancy policies, what really matters is for people to know what the standards of behaviour are. You don’t have to have a corporate lawyer to draw that up. You can simply say, these are our values in this workplace and we will

not tolerate discrimination or harassment.”