A woman who alleged she was sexually harassed at the North Vancouver Sleep Country store where she worked has had her complaint dismissed on the grounds she regularly took part in dirty talk and crude sexual banter in the workplace herself.
Adele Kafer filed a complaint of sexual harassment against Sleep Country and a former colleague at the North Vancouver store, saying she was subjected to a yelled sexual slur and that her colleague joked about giving her a "roofie" - the date rape drug.
Kafer said her colleague Arif Arjania also used her company email account to send her an email, referring to her being "gay and stupid and weird and horny and a loser" and implying she was sexually interested in him because he "has the biggest penis."
Sleep Country admitted in affidavits that the events took place. But company lawyers argued Kafer also frequently took part in "crude and sexual talk" herself, and so couldn't argue that the comments were unwelcome.
In an unusual decision, Human Rights Tribunal adjudicator Marlene Tyshynski agreed, dismissing Kafer's complaint. While the email "on its own, would seem offensive to many," in context, it was in the same vein of banter that Kafer and her colleagues regularly engaged in, wrote Tyshynski.
She added that Kafer admitted jokes about penis size and sexual talk was common at her workplace.
"There is extensive material filed that appears to support that (Kafer) was a fully participating player in the crude sexualized conduct and language in the workplace," wrote Tyshynski.
She noted the Supreme Court of Canada has defined sexual harassment as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences."
Sleep Country argued that given Kafer's similar behaviour, "no reasonable person would conclude that she found the conduct in question unwelcome."
Kafer said in her affidavit she participated in the sexual banter "to fit in and be liked."
In reaching her decision, Tyshynski added Sleep Country's argument that "crude and ongoing sexual banter were the norm in the workplace" was not a defence against sexual harassment in general. "The employer has a duty to provide a workplace free of sexual harassment," she noted.
Kafer has been off work on stress leave for the past year. In part of her Human Rights Tribunal complaint, she alleged that while she was off work last January, she received four or five sexually explicit emails a day from people claiming to have seen her online profile and wanting to sleep with her. After she called police and Sleep Country's human resources department, the emails stopped.
Tyshynski concluded there was no evidence linking those emails to her employment.
The company has stated Kafer still has a job, and that she can transfer to another store if she wants to.
