Grounds of Sex - Sexual Harassment - PART 1

Thursday, 24 January 2019 6:58 PM

Feb 18th

A stereotype that our society is hypersexualized.

Key word for any definition given- Unwelcomed* behaviour in the workplace
Not meant to eliminate banter, jokes.

Two types of SH: - modern definition of discrimination - also included in the Belizean legisla
- Quid pro quo - doing an act is tied to some benefit - "want the promotion, have to ha
- Creation of a hostile or abusive work environment - no transaction but the work envir

Meritor Savings Bank - Vinson complained about her supervisor who made constant sexual
forcibly raped her on several occasions. Court claimed there was sufficient evidence for this
hostile working environment. Established the modern definition of SH

Janzen v Platy - waitresses were harassed and it was argued that they weren't being harass
but rather that they were attractive. Was not a sufficient defense.

All the employee has to show is that the detriment can be some action that affects the empl
Continuing to work would not be held against the employee - due to their economic reality.

Institu Cleaning - A single incident, if sufficently serious, can amount to sexual harassment.
that whether or not a single incident is sufficient to be deemed sexual harassment is a ques
NECESSARY

If you have widespread sexual favoritism (prefers one gender over the other)
Miller v Dept - filed a complaint as the warden showed favoritism to 3 female employees th
relations with. Court held it was a hostile working environment as you were saying that if yo
with him, then you too would benefit from his favouritism.

-There is NO REQUIREMENT FOR A MALE COMPARATOR

What is unwelcomed? Objectively & Subjectively - Victim & a reasonable person find it offe
whether you have created a hostile working environment.

Morse v Future Reality- Open office which she shared with other male employees who dow
then they would discuss it within the workspace. They never directed any of the convo to h
personal or meant to attack her. She resigned as she felt uncomfortable - bad language.
Tribunal - was sufficient to creating a hostile environment. She subjectively found their actio

Sexual Harassment as a ground of discrimi
ation
ave sexual relations"
ronment has become so toxic
l advances, fondled her &
s workplace to be deemed a
sed because of their gender
loyee's working condition.
"Hiya Big Tits". Court held
stion of fact. REPETITION NOT
hat he was having sexual
ou submit to doing things
ensive. Test to determine
wnloaded sexual images and
her, she didn't think it was
ons offensive.
GROUNDS OF SEX- SEXUAL HARASSMENT
A. DEFINITION OF SEXUAL HARASSMEN
The keyword in the definition of sex
UNWELCOMED/UNWANTED SEXUA
Modern definition of Sexual Harass
- Unwelcomed sexual conduct
- Quid Pro Quo
- Hostile or Abusive Work Envir
Meritor Savings Bank v Vinson - Vins
made constant sexual advances, fon
occasions. The US Supreme Court ex
harassment to include - any behavio
work environment for employees.
This case established hostile o
constituting as sexual harassm
Janzen v Platy - Waitresses were har
argued that they weren't being hara
because they were attractive.
Court held that this was not a suffici
B. DETRIMENT/DISADVANTAGE
All the employee has to show in rela
affects the employee's working con
NB - Continuing to work woul
to the court understanding th
Institu Cleaning Co Ltd v Heads: Vict
cleaning firm. The harasser entered
found the remark very embarrassing
twice his age. She received no intern
 - PART 1

ination.

NT

xual harassment -
AL BEHAVIOUR

sment includes three tenets:

ronment

son complained about her supervisor who

ndled her and raped her on several
xpanded the interpretation of sexual
or that contributed to or created a hostile

or abusive work environment as

ment.

rassed within their job. The defendants

assed because of their gender but rather

ient defense.

ation to a detriment - some action that

ndition.

ld not be held against the employee - Due

he employee's economic reality.

tim was an area supervisor for a contract

the room and said 'Hiya, big tits'. She
g and distressing, especially as was nearly
nal support in making a complaint, and
whether you have created a hostile working environment.

Morse v Future Reality- Open office which she shared with other male employees who dow
then they would discuss it within the workspace. They never directed any of the convo to h
personal or meant to attack her. She resigned as she felt uncomfortable - bad language.
Tribunal - was sufficient to creating a hostile environment. She subjectively found their actio

Participation - defense used - victim participated or consented to the conduct. Burden woul
that the conduct was unwelcomed.
Court will assess whether the claimant was a willing participant. Be careful with such an app

Also remember social demographics*

Harris v Forklift - sexually harassed by the president.

Determining whether there was a hostile working environment - looking at a combination o
should be used:
Frequency, severity, physically threatenting, reasonably interfers with the claimant's workin

Strathclyde Regional v Porcelli

Problems with repitition - allows too much leeway, allows mean & harmful conduct to escal

Feb 20th

How to deal with sexual harassment?

Dismissal Law - there is an unwillingness to see sexual harassment as a grounds for summar

Cadet v Deep Bay hotel - Cadet was the personal manager of the hotel, responsible for hirin
Charles, aged 19, Cadet made sexual advances against her and even tried to rape her. Only
commit suicide, he stopped. Company used the info to dismiss him. Antigua Industrial Cour
for unfair dismissal and stated that this dismissal even would amount to defamation and th
the chance to answer such claims. And that the claims were unsubstantiated.

Note this case with BICO

Sexual harassment is also tort - can create vicarious liability on the employer. If the employe
workplace, a hostile work environment, and if that results in mental issues, can be seen as a
could render the employer liable.

Prospects of vicarious liability can be a strong motivator for an employer to get its workplac
show - its exercised reasonable care in term of preventing occurrence or re-occurrence of
workplace. Sexual Harassment policy, training where employees are trained on the policy, e
sign that they understand the policy, horizontal & vertical reporting

Employer is not expected to see everything that occurs. If they can show they have been tak
and are proactive in it, then that would reduce the likelihood of the employer being liable.

wnloaded sexual images and
her, she didn't think it was
ons offensive.
ld then shift to complainant
proach.
of factors, no single factor
ng conditions
late.
ry dissmissal
ng & firing members of staff.
when she threatenend to
rt gave Cadet compensation
he fact that he was not given
er allows a climate within the
a tort. A breach of that duty
ce in order. Employer has to
sexual harassment in the
ensure employees read and
king these reasonable steps
to the court understanding th
Institu Cleaning Co Ltd v Heads: Vict
cleaning firm. The harasser entered
found the remark very embarrassing
twice his age. She received no intern
eventually resigned and successfully
Court - Whether the employee suffer
fact for the tribunal. Detriment mea
Whether a single verbal act of sexu
complaint is also a question of fact
This case also highlighted that Repe
be constituted as an act of sexual h
Argued to allow too much lee
continue and possibly escalat
C. HOSTILE WORKING ENVIRONMENT
To establish the existence of a "host
case is sufficient to prove this case.
Miller v Department of Corrections -
environment can be caused even wi
advances.
Three female employees of the grou
warden's favorable treatment of thr
had sexual affairs constituted sexual
"Widespread sexual favoritism
hostile work environment beca
to female employees that they
D. WHAT ARE THE UNWELCOME/HOST
The test comprises of a - Objective &
Objective - one that a reasona
Subjective - one that the victim
E. WHAT ABOUT ORDINARY BANTER?
Courts must be careful not to mistak
discrimination.
Morse v Future Reality Ltd - Morse w
a number of men who downloaded
Internet and then discussed them w
he employee's economic reality.

tim was an area supervisor for a contract

the room and said 'Hiya, big tits'. She
g and distressing, especially as was nearly
nal support in making a complaint, and
y claimed sex discrimination.

red any detriment is largely a matter of

ans no more than disadvantage.
ual harassment is sufficient to found a
and degree.

etition of the acts is not necessary for it to

harassment.
eway and allows for harmful conduct to
te.

tile working environment" - A prima facie

- the Court deemed that a hostile

ith the absence of subjection to sexual

unds filed a complaint alleging that the

ree other female employees with whom he
l harassment.
m in a workplace may create an actionable
ause the demeaning message is conveyed
y are viewed as 'sexual playthings"

TILE ENVIRONMENT TESTS?

& Subjective components:

able person would find hostile or abusive

m in fact did perceive to be so.

ke ordinary banter or socializing for

worked in an office which was shared with

sexually explicit/obscene images from the
within the workplace. Although the
show - its exercised reasonable care in term of preventing occurrence or re-occurrence of
workplace. Sexual Harassment policy, training where employees are trained on the policy, e
sign that they understand the policy, horizontal & vertical reporting

Employer is not expected to see everything that occurs. If they can show they have been tak
and are proactive in it, then that would reduce the likelihood of the employer being liable.

Austrailain Case - Coyne Case- He exposed himself to a fellow employee and then grabbed
instead of discilpining him, the other employees harassed the victim and she quit. The empl
liable for the harassing behaviour of the co-workers. What went against the employer is tha
policy for employees, the only literature available was only disseminated to supervisors/ma

Preventative measures - Sexual education, etc. and shouldn't only be shared with managem
workforce. Also may have education and re-education (may have to have refreshers), may h
show you are constantly trying to make the policy better.

Could also be a breach of the terms of the contract

Confidentiality

Seymour Bahamas Case - Symour was dismissed after allegations of sexual harassment. The
as he didn't get the opportunity to confront his harasser, so the dismissal was deemed unla

Titus v Sandals Antigua - Tourist reported about a harasser. The court held because their wa
the dismissal was unlawful.

Wright - dismissed as a result of allegations by 4 female staff members. He said the dismissa
to know who reported him. Was disclosure necessary? Disclosure will not occur where you
the confidentiality of the victim.

Resistance to also include same-sex harassment but in modern times, it has been sucessfull

Smith - Sex is gender & not orientation

Pearce - teacher being harassed by students - not succesful because a male homosexual wo
treatment??

Unflattering acts or remarks

Shaw - harassed over a period of 14 years. SH - conduct that denegrates or vexatious condu
based on her sex was sexual harassment

Made fun of the way she walked, said that women should be home, she reported to her sup
they were all held liable.

If customers are coming in, harassing

Bourdane - male parent made sexual remarks at an employee and when she complained th
to the party. It escalated to him hitting her on her bottom and when she started to cry, she
said she's going to report the matter to the police, she was fired.
 sexual harassment in the
ensure employees read and
king these reasonable steps
her vagina. She reported and
loyer was found vicariously
at they didn't have an actual
anagers.
ment level but with the entire
have to update the policy to
F. PARTICIPATION IN THE CONDUCT/A
ey found the process flawed
awful.
as a failure for a fair hearing,
als was unfair and he wanted
need to protect and preserve
ly recognized.
ould've gottent he same
uct directed at a woman
G. BASED ON SEX
pervisor and they did nothing,
he manager just sent her back
was sent home. When she
Courts must be careful not to mistak
discrimination.
Morse v Future Reality Ltd - Morse w
a number of men who downloaded
Internet and then discussed them w
activities were not directed towards
uncomfortable and she accepted tha
personal or intended to intimidate h
She eventually resigned - citing the p
obscenity in the office as the reason
Tribunal held - all the above factors
to constitute sexual harassment and
one had taken action to prevent the
Can be utilized as a defense by the h
consented to the harassment or de
When such a claim is made - onus sh
they were not a willing participant
NB - reinforces the stereotype
are sexualized objects.
Consent fails to take into acco
say no.
Harris v Forklift Systems -Ms. Harris
harassment at Forklift Systems, Inc.,
The Supreme Court also determined
deciding whether or not a hostile wo
'reasonable person' would think it so
combination of factors should be tak
determination - Frequency, severity,
interferes with the claimant's workin
Does conduct which can constitute s
nature or have a sexual motive?
What is the primary question which
Strathclyde Regional v Porcelli - The
being shown a screw nail and asked
penis-shaped glass rod holder and a
Court came to the conclusion - This
 ke ordinary banter or socializing for

worked in an office which was shared with

sexually explicit/obscene images from the
within the workplace. Although the
s her, they did cause her to feel
at her colleagues' activities were not
her.

pictures, bad language and atmosphere of

n for doing so.

had a detrimental impact on her such as

d that the company was liable because no
e discrimination.

ACQUIESCENCE
harasser - to state that the victim
enied that the incident even occurred.

hifts to the complainant to prove that

in the conduct alleged to be offensive.
e that women enjoy sexual harassment &

ount - the different ways in which women

was an employee who suffered sexual

, for two years.

d that the appropriate threshold for

ork environment existed is whether a
o. The Court established that a
ken into account in order to make such a
, physically threatening, reasonably
ng conditions.

sexual harassment have to be sexual in

h the Court must ask?

abuse to which she was subjected was

if she wanted a screw and being shown a
asked if she had use for it.
particular part of the campaign was
they were all held liable.

If customers are coming in, harassing

Bourdane - male parent made sexual remarks at an employee and when she complained th
to the party. It escalated to him hitting her on her bottom and when she started to cry, she
said she's going to report the matter to the police, she was fired.

he manager just sent her back
was sent home. When she
Strathclyde Regional v Porcelli - The
being shown a screw nail and asked
penis-shaped glass rod holder and a
Court came to the conclusion - This
plainly adopted against the applican
particular kind of weapon, based up
have been used against an equally d

Note - this case also discusses there

IN ORDER TO ESTABLISH DISCRIMIN
OCCURRED.

H. ISOLATED ACTS OR REPITION

Should an isolated event be treated

Institu Cleaning Co v Heads - Court d

act of sexual harassment is sufficien
Furthermore - it is not necessary for
for the conduct to be deemed sexua

I. HOW DO WE ADDRESS SEXUAL HAR

We can address Sexual Harassment throug

There is however an unwillingness to see s
summary dismissal.

Cadet v Deep Bay Development Co.

manager of the hotel, responsible fo
was accused of making sexual advan
and even tried to rape her. Only whe
stopped. His employer used this acc
Antigua Industrial Court - Held it wa
dismissal could even be viewed as d
decision turned on this point, was th
opportunity to answer to such claim

BICO v Jones -

J. SEXUAL HARASSMENT AS A TORT

Sexual harassment may create liability on

tort. - If the employer allows a climate with
environment), and if that results in menta

K. VICARIOUS LIABILITY
 abuse to which she was subjected was
if she wanted a screw and being shown a
asked if she had use for it.
particular part of the campaign was
nt because she was a woman. It was a
pon the sex of the viction, which would not
disliked man.

e is NO NEED FOR A MALE COMPARATOR

NATION ON THE GROUNDS OF SEX

as sexual harassment?

determined that whether a single verbal

nt - is a question of fact and degree.
r repetitive acts to have occurred in order
al harassment.

RASSMENT

gh dismissal law.
sexual harassment as a ground for

Ltd (Royal Antiguan)- Cadet, a personal

or the hiring and firing members of staff,
nces against a 19 year old staff member,
en she threatened to commit suicide, he
cusation and dismissed him.
as an unfair dismissal and stated that his
defamation. The main reason why the
he fact that he was not given the
ms. Claims were unsubstantiated.

the part of any employer treating it as a

hin the workplace (a hostile working
al issues - can be seen as a tort.
Sexual harassment may create liability on
tort. - If the employer allows a climate with
environment), and if that results in menta

K. VICARIOUS LIABILITY

In certain circumstances, employers may b

managerial or other employees where the

TO DEFEAT A CLAIM OF VICARIOUS LIABIL

It exercised reasonable care in term
occurrence of sexual harassment in
Reasonable care include - Sexual Harassm
trained on such policy; ensure employees r
policy; horizontal and vertical reporting.

NB - An employer is not expected to see e

workplace. Showing that they have been t
proactive in it - REDUCES THE LIKELIHOOD

L. WHAT CONSTITUTES AS REASONAB

Robichaud v Canadian Treasury Board:

An employer who responds quickly a
instituting a scheme to remedy and
the same extent, if at all, as an emp

Coyne v P&O Ports - Male co-worker expo

grabbed her vagina. She reported the mat
investigated, the other employees harasse
resignation was deemed a constructive dis
vicariously liable for the behaviour of the c
Court explained that their lack of an actua
and the only literature they had available,
supervisors/managers.

Advice to employers to avoid vicario

The preventative measures to be tak
implementation of adequate educat
issues and monitoring of the workpla
harassment policies … Educational p
dissemination of literature and the
Re-education programmes to ensur
materials and understood sexual ha

M. IMPLIED TERM UNDER THE CONTRA

 the part of any employer treating it as a
hin the workplace (a hostile working
al issues - can be seen as a tort.

be vicariously liable for the acts of his/her

ey constitute sexual harassment.

LITY - EMPLOYER MUST SHOW:

ms of preventing occurrence or re-
n the workplace.
ment policy; training where employees are
read and sign that they understand the

everything that occurs within the

taking these reasonable steps and are
D OF THE EMPLOYER BEING LIABLE.

BLE STEPS BY AN EMPLOYER?

and effectively to a complaint by

d prevent recurrence will not be liable to
ployer who fails to adopt such steps.

osed himself to a fellow employee, then

tter, while the matter was being
ed the victim, forcing her to resign. Her
smissal and the employer was found
co-workers.
al policy for employees went against them
, was disseminated to

ous liability:
ken would ordinarily include the
tional programmes on sexual harassment
ace to ensure compliance with its sexual
programmes might include the -
provision of seminars.
re that employees received disseminated
arassment policies.

ACT OF EMPLOYMENT
 dissemination of literature and the
Re-education programmes to ensur
materials and understood sexual ha

M. IMPLIED TERM UNDER THE CONTRA

Sexual harassment may also be a bre

N. CONFIDENTIALITY V DUTY TO DISCLO

Seymour v CIBC (Bahamas) Limited -

of sexual harassment. They found th
opportunity to address the allegatio

Titus v Sandals (Antigua) - A tourist r

The Court held that due to the empl
dismissal was unlawful.

Vent-Axia v Wright - Wright was sum

harassment allegations being made
to know who had reported him, how
Was disclosure necessary?
Employment Tribunal - TEST TO BE A
necessary to consider the issues fair
claim.
An employer - under a duty to prote
to them in confidence by employees
only in circumstances where the per
show that this information was nece

O. SAME SEX HARASSMENT & SEXUAL O

There is a resistance to also include
successfully recognized in modern ti

Smith v Gardener Merchant Ltd - Ru

the definition of sex.

Pearce v Governing Body of Mayfield

was harassed by pupils due to her se
Court held - Sexuality discrimination
Discrimination Legislation, thus coul
grounds of sex. Furthermore, it was
comparator for Pearce, and he wou
not discrimination on the grounds o

However, plaintiffs do succeed when

be sex or gender-based in both fema
 provision of seminars.
re that employees received disseminated
arassment policies.

ACT OF EMPLOYMENT
each of the terms of the contract.

OSURE

- Seymour was dismissed after allegations

he process flawed, as he didn't get the
ons, dismissal was deemed unlawful.

reported an employee had harassed her.

loyer's failure to give a fair hearing, the

mmarily dismssed due to sexual

by four female staff members. He wanted
wever such information was not disclosed.

APPLIED - whether such disclosure was

rly in the context of an unfair dismissal

ect as far as possible the information given

s; required to identify those concerned
rson asking for that information could
essary in the context of their specific case.

ORIENTATION
same-sex harassment however has been
imes.

uled that 'sexual orientation' fell outside

d Secondary School - Pearce, a lesbian,

exual orientation.
n was not covered under the Sex
ld not be held as discrimination on the
s held that a gay man was the correct
uld have gotten the same treatment - thus
of sex.

n same-sex harassment has been proven to

ale & male same-sex scenarios.
 grounds of sex. Furthermore, it was
comparator for Pearce, and he wou
not discrimination on the grounds o

However, plaintiffs do succeed when

be sex or gender-based in both fema

P. UNFLATTERING ACTS OR REMARKS

Does sexual harassment constitute w
of their sex?

Shaw v Levac Supply Ltd - Employee

a co-worker who constantly criticise
degraded her as a woman - Made fu
should be home.

Board - CONDUCT WHICH DENIGRA

VEXATIOUS CONDUCT WHICH IS DIR
SEX ALSO CONSTITUTES SEXUAL HA

As she reported to her supervisor a

supervisor and company was jointly
from Shaw's harassment.

Q. SEXUAL HARASSMENT BY MEMBERS

Go Kidz Go v Bourdane - Male paren

When she complained, the manager
back to the party. It escalated with h
she started to cry, she was sent hom
was going to report the matter, she
Court - affirmed that an employer h
sexual harassment by non-employe
duties, once such acts of harassmen
attention.
s held that a gay man was the correct
uld have gotten the same treatment - thus
of sex.

n same-sex harassment has been proven to

ale & male same-sex scenarios.

where a person insults another on the basis

e was harassed over a period of 14 years by

ed her work, denigrated her sexuality and
un of the way she walked, said that women

ATES A WOMAN'S SEXUALITY OR

RECTED AT A WOMAN BECAUSE OF HER
ARASSMENT.

and they did not act - her co-worker,

y or severally liable for the losses arising

S OF THE PUBLIC

nt made sexual remarks at an employee.

r dismissed the matter and just sent her
him hitting her on her bottom and when
me. When she informed her employer she
was fired.
has responsibility for preventing acts of
ees on employees in the course of their
nt have brought to the employer's