In Canadian workplaces today, sexual harassment is defined by a thin yellow line. Sexual innuendo that can easily be seen as harmless flirting to one employee, can just as easily be seen as an invitation to a lawsuit, to another. As sexual harassment is often in the eyes of the beholder, when will an employee’s inappropriate comments cost him his job?
Robert Gillam held an important job as a supervisor working on pipeline projects in Western Canada, for Waschuk Pipe Line Construction, a mainly male dominated workplace. Three females worked at the job site, and one of them just happened to be the daughter of the company’s owner.
Gillam felt that the three female employees spent too much time socializing with the male employees and that they were responsible for work not getting done. As a result, in conversations with other employees, he consistently referred to them in very derogatory terms, blaming them for a number of his problems.
When the women complained that the name calling amounted to harassment, Gillam was warned that his job was on the line. Although the issue improved for some time, it did not disappear entirely. When the company’s owner later learned that one of the female employees was considering suing the company, he decided that Gillam had to be fired without severance. Gillam sued arguing that his conduct was not serious enough to justify his dismissal.
At a recent trial, Gillam’s case was dismissed. According to the judge, it did not matter that Gillam did not make the derogatory statements directly to the female employees. Since they learned about his statements through others, it poisoned the workplace and qualified as sexual harassment nonetheless.
In the quest to define when an employee’s inappropriate comments will amount to sexual harassment, there are some recurring themes:
- whether there is a workplace harassment policy and whether its terms have been followed.
- whether the employee was warned that the comments were offside. Here, Gillam was warned his behaviour could not be condoned , which contributed to the finding that his case should be dismissed.
- whether the employee knew or ought to have known that the comments were unwelcome.
Author: Daniel Lublin