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One of the dangers of the modern Canadian human rights regime is that it conflates the concept of sexual harassment with the concept of discrimination based on sex. Sexual harassment is a real and pressing problem; however, it is not contingent upon gender and sexual orientation. Rather, sexual harassment transcends these narrow categorizations. It exists as an independent phenomenon that can be best defined as unwanted interference with one’s sexual integrity through either physical or verbal means. And unlike what some human rights proponents would contend, sexual harassment doesn’t discriminate.
In Janzen v. Platy Enterprises Ltd, [1989] 1 S.C.R. 1252, a case celebrating its twentieth anniversary in the next few weeks, the Supreme Court commits the sin of introducing a human rights concept into an arena where it has no rightful or conceptual place. The appellants in this case were employed as female waitresses owned and operated by Platy Enterprises Ltd. During the course of their employment, they were sexually harassed by another employee, a male cook. (The offending employee was in charge of the cooking during the evening shift and had no actual disciplinary authority over the waitresses.) The sexual harassment included unwanted touching and verbal abuse.
The appellants filed a complaint with the Manitoba Human Rights Commission against Platy Enterprises Ltd. The adjudicator found that the appellants had been subjected to persistent and abusive sexual harassment and had been the victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of Appeal reversed this judgment, arguing that sexual harassment of the type to which the appellants were subjected was not discrimination on the basis of sex and that the employer could not be held liable for the sexual harassment perpetrated by its employee.
The Supreme Court overturned this decision by stating that sexual harassment is a form of sex discrimination. The Court went on to say that the fact that only some, and not all, female employees at the restaurant were subject to sexual harassment is not a valid reason to conclude that sexual harassment could not amount to discrimination on the basis of sex. Crucial to the Court’s reasoning was the fact that to deny a finding of discrimination in the circumstances would be to deny the existence of discrimination in any situation where discriminatory practices are less than perfectly inclusive. According to the Court, the salient fact in this case was that it was only female employees who ran the risk of sexual harassment. Hence, only a woman could be subject to sexual harassment by a heterosexual male, such as the offending employee. A man would not have been subjected to this treatment.
The problem with the Court’s reasoning is that it ignores the matrix of other possibilities and simplifies the matter of sexual harassment through out-dated paradigms. Using normative standards, the Court uses the “heterosexual female being harassed by the heterosexual male” as the default template. In doing so, the Court fails to see that a heterosexual female could also be sexually harassed by another heterosexual female. Imagine a scenario, where one female is forced by another to engage in sexually humiliating acts. The act itself may have nothing to do with sexual attraction, but is nevertheless sexual exploitation and a violation of a person’s sexual integrity. Or in contrast, a heterosexual female could be subject to sexual harassment by a homosexual female. For example, a homosexual female may engage a heterosexual female in unwanted sexual advances, which can include all the hallmarks of sexual harassment such as unwanted touching or unwelcome solicitations. Moreover, a heterosexual male can also be sexually harassment by a male of any sexual orientation, or a female of any sexual orientation. The same is true for a homosexual male.
The above demonstrates that one’s gender and sexual orientation are frequently relevant in the context of sexual harassment. Additionally, the above scenarios are not merely conceptual permutations, but represent actual occurrences that unfold within the social intercourse of everyday life. What the Court did in Janzen v. Platy Enterprises Ltd. was give a certain group of people a monopoly over a right that other people are equally entitled to. This monopoly is not only unjust, but can also be abused by monopolists intent on using human rights as a sword instead of a shield.
2 Comments
It is unfortunate that this critique of the reasoning in Janzen is premised on hypotheticals, rather than looking at how the case has actually been applied by courts over the last 20 years. A quick noteup on CANLii reveals 200 cites to the case. This includes the landmark 1995 case Egan v. Canada (http://scc.lexum.umontreal.ca/en/1995/1995rcs2-513/1995rcs2-513.html) which held that discrimination based on sexual orientation is an analogous ground under section 15 (equality rights) of the Charter. In Egan, the Supreme Court of Canada cited Janzen as standing for the legal principle that "differential treatment in the form of sexual harassment constitutes discrimination on the basis of sex" (page 598).
Further, the definition of sexual harassment from Jenzen that has been applied by courts is not, as suggested, contingent on sexual orientation or gender. For instance, in the very recent case van Woerkens v. Marriot Hotels Canada Ltd. (http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc73/2009bcsc73.html) the Supreme Court of BC cited the definition of sexual harassment from Jenzen as:
"sexual harassment in the workplace may be broadly defined 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. It is an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being"
(quoting Jenzen at para 165)
This would seem to cover the hypotheticals you proposed.
A review of these two cases alone seems to cast serious doubt on the characterization of Janzen as creating "a monopoly over sexual harassment".
One important piece of information is missing from this analysis. The Janzen decision is certainly important for, among other reasons, its pronouncement that sexual harassment could be considered discrimination on the basis of sex. But you have to keep in mind that the reason this decision even came about was, at the time, the Manitoba Human Rights Act did not contain a separate provision dealing with harassment. As a result, the complainants were left with having to argue that the harassment they endured was, in fact, discrimination on the basis of sex. If they could not make that argument, their complaints would fail and they would have no recourse for what they endured against their employer. Here, they did succeed before the adjudicator but Manitoba's Court of Appeal floundered and concluded that the harassment encountered by the complainants could not be considered discrimination on the basis of sex and, as a result, the Act didn't apply. As is noted in the Supreme Court's decision, the Manitoba government repealed the Act and replaced it with the Human Rights Code in 1987. Incorporated in the 1987 legislation was a specific section addressing harassment which stands today and is, in my view, one of the most comprehensive definitions of harassment in human rights legislation across Canada. These changes to the legislation came about in great part due to the Court of Appeal's decision in Janzen. So, by the time the Supreme Court dealt with this matter the whole 'sex harassment as sex discrimination' argument was moot in Manitoba.
My point here is that Janzen has to be kept in context. It was decided in 1989. It stemmed from arguably flawed legislation which was subsequently remedied. Beyond that, times were different. Judges were different. Legal reasoning in the areas of harassment and discrimination was different. In some ways, when you read Janzen today you have to wonder how this case even got to the Supreme Court in the first place (from a subject matter perspective, that is. Certainly, there were legal arguments to be made). But that was then, this is now. To suggest that the law on sexual harassment has remained static since Janzen, as it appears is the case from this piece, is simply inaccurate. There are plenty of examples in the case law which demonstrate that the scenarios cited by the author would certainly fall within the current-day notion of human rights-based harassment.