August 23, 2019
Bethany Hastie, Assistant Professor at the Allard School of Law, began her research in the area of workplace sexual harassment at a time when such issues were making headlines across the country. Reports on sexual misconduct in Canada’s RCMP and military had surfaced and the aftermath of the Jian Gomeshi trial had captured the nation’s attention.
As part of a grant from the Canadian Bar Association, Professor Bethany Hastie began her investigation into the interpretation and application of sexual harassment laws, particularly in human rights tribunals. She found that while there was very rich literature and research on sexual assault in the criminal justice system, there was little contemporary research in the employment and human rights context on sexual harassment.
Seeing how many legal claims concerning sexual harassment in the workplace are increasingly pursued through human rights tribunals, there was an information gap that needed to be filled by examining whether and to what extent some of the more notorious problems we see in complaints of sexual and gender-based violence in the criminal justice system are replicated in the human rights context. This is the central question guiding Professor Hastie’s research.
We recently chatted with Professor Hastie about the findings of her report, which is available for download online.
You mention in your report that legal claims concerning sexual harassment and misconduct are increasingly being pursued through human rights tribunals. Why is this the case?
As a form of sex discrimination, human rights law has always been a remedial option for addressing sexual harassment complaints. Given that human rights tribunals are seen as having more relaxed procedural and evidentiary requirements, coupled with the support the tribunal offers to self-represented parties, it makes sense to see cases being brought here. In addition, because human rights tribunals can order compensatory awards for injury to dignity, this may be a better fit in terms of the kinds of losses and harms that flow from an experience of sexual harassment as a form of discrimination.
What are some of the critical barriers that complainants of sexual harassment face in human rights tribunals?
One thing I noticed in the existing case law is the significance that credibility assessments have in establishing a complaint of sexual harassment. Because sexual harassment often occurs in private, the testimony of the parties to the complaint is often integral to making findings of fact, and determining whether or not sexual harassment occurred. Credibility assessments can create problems for complainants who are “less than ideal”, such as where they have participated in sexual banter or conduct in the workplace in the past. In other words, credibility assessments can present an opportunity for stereotypes and unconscious bias to enter analyses. This isn’t a problem that is limited to sexual harassment, or to human rights law. However, given the weighty reliance often placed on testimony, it is an issue of significance in this context.
As part of your research, you analyzed workplace sexual harassment case law at Ontario and BC’s provincial human rights tribunals. Was there one thing from your findings that surprised you the most?
This report is based on a review of all decisions on the merits for workplace sexual harassment in BC and Ontario from 2000-2018. In analyzing trends in the decisions, one thing I looked at was whether there was a discrepancy between represented parties and self-represented parties in terms of the outcome of decisions. I was surprised to learn that there wasn’t a large discrepancy in outcomes for complainants. What I mean by that is that the number of cases where a complaint was justified or dismissed didn’t seem to depend significantly on whether the complainant was self-represented.
Your report sets out a number of recommendations. What is one change that you think would make a substantial difference in improving the way sexual harassment law is applied?
The most important recommendation that I make in the report is for the requirement that a complainant establish that the conduct was unwelcome to be changed. Under sexual harassment law, a complainant currently bears the burden of proving that the alleged harasser knew, or ought to have known, that their conduct was unwelcome. As I analyze in depth in my report, this requirement creates the most direct and expansive space for gender-based myths and stereotypes to enter the analysis, and essentially requires a complainant to prove that she did not consent to the conduct. In the criminal justice system, a standard of affirmative consent now exists, and while continued issues in its application are well-documented, it is an important doctrinal shift that should also be made for sexual harassment complaints under human rights law.
Why do you think this is a particularly important time to be re-evaluating the way our province handles such cases?
The reintroduction of a Human Rights Commission in BC presents a fantastic opportunity for undertaking a re-evaluation of sexual harassment law, which hasn’t substantially changed since it was first set out in the Supreme Court of Canada decision of Janzen v Platy Enterprises in 1989. The Commission, as a body primarily tasked with education and policy reform, is uniquely placed to lead this kind of reform, such as through continued training and education for adjudicators, lawyers and other parties, and the development of policy guidelines that can assist in the interpretation and application of human rights law in individual complaints. A number of recommendations I make in the report, including with respect to the unwelcome requirement, as well as in relation to remedial powers, could be taken up by the forthcoming Commission.