Sexual Harassment in the Workplace: J v. P Enterprises Ltd. [1989] 1 S.C.R.

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The Facts:
Dianna and Tracy have just started working as waitresses at a restaurant in Winnipeg. Tommy is the cook
and Phillip is the owner of the restaurant.
At first, Tommy and Dianna get along well but things start to change after a few weeks. Tommy starts to
touch Dianna he grabs her legs and bum, touches her knee and her crotch area. Sometimes Tommy
does this when Dianna is carrying a tray and cant fend him off. Dianna doesnt like this but she is new and
doesnt want to rock the boat so she doesnt say anything. Eventually, she gets fed up and tells Tommy to
stop. She tells him that she is not interested in him.
Tommy stops touching Dianna but he treats her differently. He is unfriendly and sometimes angry or shorttempered with her. He criticizes her and sometimes yells at her in front of other staff. He takes a long time
filling her food orders or sometimes makes mistakes so that the customers complain to her.
Dianna starts to hate going to work so she complains to Phillip, the owner. Phillip says - if its about
Tommy, I cant do anything about it and he seems annoyed that she has brought it up.
Although Tommy is not officially a supervisor, it is clear that he is the second in command in the restaurant.
He decides who goes home early if business is slow, he handles problems with food quality or service if
Phillip is not there and he clears cash from the till. He tells the waitresses that he can fire them something
that Phillip confirms even though it is not true.
Tommy keeps treating Dianna badly and she complains again to Phillip who tells her that she is overreacting and it is her fault. Dianna is so upset and stressed about the situation at work that she is having
trouble sleeping, cant concentrate and sometimes throws up before going to work. She finally decides to
quit. It takes her over a month to find a new job.
Tracy starts at the restaurant a few weeks before Dianna quits. Soon after she starts work, Tommy starts to
touch her inappropriately. On her 2nd week, he kisses her. He grabs her, trying to touch her stomach and
breasts. Once, she is washing dishes at the sink and he comes up behind her and tries to put his hands
under her sweater to touch her breasts.
Tracy is angry and complains to Phillip but he is not sympathetic. After she complains, Tommy stops
touching her but both Tommy and Phillip start to treat Tracy differently. Tommy makes inappropriate
remarks about her appearance. Tommy and Phillip criticize her work and complain about her in front of
other employees. One day, Phillip fires Tracy, saying that a customer has complained about her. As a
result of the stress, Tracy has trouble sleeping and concentrating. She feels dirty because of how she has
been treated. It takes her more than 8 months to find another job.

Sexual Harassment in the Workplace: J v. P Enterprises Ltd. [1989] 1 S.C.R. 1252

The Charter
Section 15 (1) Every individual is equal before and under the law and has the right to equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability. (also now includes sexual
orientation as a ground).
Discussion Questions:
- What is happening in the scenario?
- What are the issues?
- Is there discrimination? If so, what does it look like? (What is discrimination? Defn below)
- How do each of the parties feel? What are they thinking?
o Tracy, Dianna, Tommy, Philip
- What would you do if you were Tracy? Dianna? Or a co-worker?
- What are some of the outside influences or pressures that shape our decisions and reactions?
- What do you think should happen? How would this be best solved?
Discrimination Definition:
Unfair treatment of one person, or group usually because of prejudice about race, ethnicity, age, religion,
gender, or sexual orientation.
Sexual Harassment Definitions:
Behaviour of a sexual nature which you feel you must put up with in order to keep your job, get a promotion
etc. Sexual Harassment is discrimination based on a persons sex usually because that person is femaleSexual Harassment includes any and all unwelcome sexual advances, requests for sexual favours, and
other verbal or physical conduct of a sexual nature. But it does not require physical touching!
What really happened?
These incidents took place in the fall of 1982. Tracy and Dianna made their complaint in 1983 and a
decision was given in 1985. After that, it was appealed to the Manitoba Court of Queens Bench (1985), the
Manitoba Court of Appeal (1986) and finally, the Supreme Court of Canada in 1989.
The Manitoba Human Rights Commission:
Tracy and Dianna were victims of persistent and abusive sexual harassment.
The physical and mental harassment created an intolerable work environment.
Tommy knew or should have known that his comments and behaviour were unwelcome.
Sexual harassment is discrimination on the basis of sex
The employer knew about the harassment and failed to do anything about it.
The employer was responsible for the actions of its employees
Awarded money (damages) for lost wages and for the wrongs suffered
The Manitoba Court of Queens Bench:
Agreed with the Commission that sexual harassment is sexual discrimination but reduced the amount of
Tracys lost wages and reduced the suffering damages

Sexual Harassment in the Workplace: J v. P Enterprises Ltd. [1989] 1 S.C.R. 1252

The Manitoba Court of Appeal:
Sexual harassment is not discrimination on the basis of sex
An employer is not responsible for the harassing conduct of its employee
One of the judges said that D and T were chosen as victims not because they were women but
because of characteristics peculiar to them (ie, that they were sexually attractive)
The Supreme Court of Canada:
Agreed with the MB Human Rights Commission and restored the original award of damages.
Disagreed with the Court of Appeal sexual harassment is a form of discrimination based on sex.
Supreme Court said:
- Sex discrimination in the workplace is defined as practices or attitudes which have the effect
of limiting the conditions of employment for, or the employment opportunities available to,
employees on the basis of a characteristic related to gender.
- ...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... 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.
- Sexual attractiveness cannot be separated from gender. The similar gender of both appellants is
not a mere coincidence, it is fundamental to understanding what they experienced. All female
employees were potentially subject to sexual harassment by the [employer].
- The employer is responsible for Tommys actions. He was acting as an employee but also was
held out as being in charge as having the authority to set work conditions and fire staff. Tommys
ability to harass D and T was directly related to his employment position as the second-incommand. He used his position of authority to take advantage of T and D. The authority given to
Tommy gave him power over the waitresses. Therefore, it was the employers responsibility to
make sure that Tommy did not abuse this power. The employer did not do so, even after specific
complaints. The employer had a duty to D and T to create a safe workplace.
Discussion Questions:
- Which Court do you agree with? And Why?
- Does this look and feel like Discrimination on the basis of Sex?
- Is this really as big as deal as it is made out to be here? Why does this matter?
- What the social influences that would lead to this sort of behaviour continuing?
- Are there other types of discrimination that would be harder to see or recognise than this one?
o What might those look like?
- How can we guard against discrimination?
- Who has the responsibility to end discrimination?