The Monopoly Over Sexual Harassment

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.