Sexual Harassment is Sex Discrimination

Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 (S.C.C.)

In a unanimous decision, the Supreme Court of Canada rules that sexual harassment is sex discrimination, thereby overturning a decision of the Manitoba Court of Appeal which found that sexual harassment was not sex discrimination within the meaning of s. 6(1) of the 1974 Manitoba Human Rights Act.

Dianna Janzen and Tracy Govereau were employed as waitresses by Pharos Restaurant in 1982. The Board of Adjudication appointed to hear and decide their complaints found that they were sexually harassed by Tommy Grammas, the cook in the restaurant, and that this constituted sex discrimination. The Board of Adjudication also found that Platy Enterprises Ltd., the owners of the restaurant, were liable for the discrimination and awarded compensation to the two women. On appeal the Manitoba Court of Queen's Bench upheld the decision of the Board of Adjudication but reduced the amounts of the awards.

The Manitoba Court of Appeal allowed the appeal by Platy Enterprises, reasoning that because only some women are subjected to sexual harassment and not all, it is not discrimination because of sex but rather discrimination because of individual characteristics. This Court found that the cause of the discrimination was the physical attractiveness of the complainants.

The Supreme Court rules that the fact that only some women, and not all women, are the victims of sexual harassment does not mean that the conduct is not sex discrimination. Gender need not be the sole ingredient in the discriminatory conduct for it to be sex discrimination; it can be one factor only. The Court finds that the key fact in the case was that it was only female employees who ran the risk of being sexually harassed. The women were subject to a disadvantage because of being women; no male employee in these circumstances would have been subject to the same disadvantage.

Sexual harassment, the Court concludes, is a form of sex discrimination. It is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of harassment.

The Court finds that Platy Enterprises must be held liable for sexual harassment for the reasons given in Robichaud. Human rights legislation is remedial and only the employer can provide the remedies required in these circumstances. The offending employee, the cook, was acting "in respect of his employment" when he harassed Dianna Janzen and Tracy Govereau.

Finally, the Court rules that the Court of Queen's Bench should not have reduced the awards to Janzen and Govereau in light of the seriousness of their complaints.

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