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Sexual Harassment or Bona Fide Occupational Requirements?

May 7, 2007
by Israel Foulon LLP

Travis Bailey finds himself in a difficult situation.  He is clearly uncomfortable with the subject matter of Venus-TV.   His lack of comfort with the sex themed television station, however, does not mean that he is being sexually harassed.

Sexual harassment occurs in the workplace when an individual is subjected to a course of vexatious sexual comments or sexual conduct that is known to be unwelcome or ought reasonably to be known to be unwelcome.  

Sexual harassment can also take place as a result of the creation of a “toxic work environment”.  A toxic work environment can exist in a workplace when the atmosphere of the workplace is “sexually charged” in such a manner that employees may feel uncomfortable.

There are a number of events that are occurring in Travis’ workplace that would typically be indicative of a potential toxic work environment.  Typically, having daily open discussions about sexually explicit subject matter in the workplace would be a good indicator of a toxic workplace.  Having adult themed toys and adult themed images in conspicuous places around the office would also typically be offside and would typically be another strong indicator of a potential toxic environment.

However, what makes this situation unique is that Venus-TV is in the business of selling sexually charged programming to advertisers who presumably wish to sell sexually themed products.  Venus-TV’s central business activity is the business of sex.  In those unique circumstances, the presence of sexually themed products and discussions about sexually explicit subject matter that is related to the business is likely required in order for people to perform their work duties.  To the extent that sexual explicit themes are present in the workplace for the purpose of conducting the business of Venus-TV, it is difficult to see how the presence of such themes could be viewed as contributing to a toxic environment.   Similarly, if business deals in this industry are typically negotiated at strip bars it is difficult to see why this would not be appropriate business expenses.

Where Venus-TV may start to cross the line is if sexually charged discussions are occurring gratuitously (for non-business purposes) or if such discussions take a personal direction (as opposed to a business slant).  In such an event, it is difficult to see how such discussions could be justified for bona fide business reasons and a toxic environment would likely be present.

Travis’ belief that he has been sexually harassed by Jenn Caravella has likely been influenced by his lack of comfort with the subject matter of the workplace.  Caravella’s invitation to Travis for a group outing outside of work accompanied by a friendly hug welcoming him would not objectively amount to sexual harassment.  Such conduct should not reasonably be known to be unwelcome.  If Travis is uncomfortable with such behaviour he has a positive obligation to let these feelings be known.  If such behaviour were to continue (or escalate) subsequent to Travis voicing his lack of comfort with that level of workplace friendliness then he likely would have a case of sexual harassment.

What is poor Travis to do?  To a certain extent he does need to grow up.  Like it or not he is working (at least for a short period of time) for an enterprise that is selling sex.  If he cannot reconcile that reality with his personal ideals then he needs to seek a transfer and potentially jeopardize his career goals. 

If he can get over his initial level of discomfort, Travis needs to accept that there will necessarily be a certain level of discussion surrounding sexually related themes in the workplace.  If Travis encounters situations where gratuitous sexual discussions are taking place that are clearly beyond the realm of what is required for business purposes, Travis should voice his personal discomfort with such discussions and he should rely on his role as HR Director to point out that such discussion for non-business related purposes should not be happening in the workplace.   If Travis can keep the distinction between business and personal in the forefront he should be able to survive his time with Venus-TV and will likely assist the station in raising its level of professionalism.   

Chris Foulon is a Partner of Israel Foulon LLP, a leading employment and labour law firm in Toronto. Chris can be reached at 416.640.1550 or cf@qtw38575.mywhc.ca



Legal Disclaimer

This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation. Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.