In Beharrell v. EVL Nursery, the complainant employee alleged that she was subjected to sexualized comments by a customer’s truck driver, and that her employer did not respond appropriately when she raised the issue. The employee alleged that her supervisors indicated that they would speak to the truck driver if he returned, but that one of them expressed reservations “because EVL’s relationship with its customer could be harmed.”
Application to dismiss
The employer applied to have the complaint dismissed on a preliminary basis, stating that it had taken appropriate action by offering to speak with the driver. The employer also noted that the ‘supervisors’ with whom the complainant spoke were not part of management, and had never made the allegations known to management, which did not become aware of them until receiving the complaint.
The tribunal declined to dismiss the complaint.
While acknowledging that the employer was “not directly responsible for (the driver’s) behaviour,” the tribunal held that the employer was obligated to respond to sexualized comments in the workplace and that it had concerns about the reasonableness of the employer’s response. The tribunal noted that, in assessing an employer’s actions in responding to allegations of discrimination, it will give consideration to the policies and reporting procedures in place, whether the allegations were taken seriously, and to the employer’s ultimate response.
In this case, the absence of any policy or reporting procedures contributed to the tribunal’s refusal to dismiss the complaint on a preliminary basis:
"EVL does not have a harassment policy (or provide) training or information on how to bring a complaint forward … Where a failure to address a complaint of discriminatory harassment results from an employer’s lack of process and policy, this could constitute a breach of an employer’s responsibilities under the Code.
"I am troubled that EVL appears to be advancing an argument that it can … ignore its responsibility to take required steps necessary to provide a harassment-free workplace and then purport to avoid any liability associated with the resulting confusion that arises."
Takeaways For employers
While this decision was on a preliminary application to dismiss (meaning that a final decision on the merits of the complaint has not yet been issued), it nonetheless provides a number of valuable reminders to employers, including that:
- The obligation to maintain a discrimination-free workplace includes the obligation to address allegations of discriminatory behaviour by customers towards employees
- An employer may be held liable for breaching its obligations under the Human Rights Code if it does not take proper steps in response to allegations of discrimination
- The failure to have policies and reporting structures in place will be held against employers where a failure to address allegations of discrimination has been advanced.
Employers would be well served to ensure that their workplace bullying, discrimination, and harassment policies provide clear reporting structures which are known to employees.
Employers that do not have such policies in place are strongly advised to consider implementing them.
For more information see:
- Beharrell v. EVL Nursery, 2018 CarswellBC 608 (B.C. Human Rights Trib.).
Brandon Hillis is a lawyer with Roper Greyell LLP in Vancouver, practicing in all areas of labour, employment, and human rights law in the workplace. He can be reached at (604) 806-3879 or firstname.lastname@example.org.