Is It Sexual Harassment?

QUESTION: After 4 years of working in the hospitality industry, I have been terminated without pay in lieu of notice for allegedly harassing a co-worker.  It being the hospitality industry, it is mostly young people who are employed.  Shy people are usually not sought after to provide customer service so these young people are fairly gregarious.  Sexual humour is a daily occurrence and I have never noticed anyone being uncomfortable with it.  I have never been uncomfortable with it. 

    Suddenly, out of the blue, I was sat down by my manager and told that someone had complained that I was sexually harassing him.  By the end of that meeting, I had been terminated.  They would not give me a copy of the letter they had received and the allegations went by in a flash because I was in shock.  The best I can remember is that it all related to sexual humour of some sort.  Can they do this?

ANSWER:  The question is not whether they can fire you, you’re not in a union so they can.  The question is whether they owe you pay in lieu of notice.  If you did something bad enough to be called “just cause”, you do not get pay in lieu of notice.

Sexual harassment is, among other things, sexual behaviour, including persistent sexual humour, with which the perpetrator knew or ought to have known the complainant was uncomfortable. 

So there is the question.  Should you have known that this person was uncomfortable with your sexual humour?  That is a very subjective issue and I cannot do it here.  Some of the questions  I would ask you are: 1. Did the individual ever reciprocate your humour? 2. Did you ever observe the individual engaging in sexual humour with other co-workers? And 3. Did the co-worker, in any way, through body language or explicit language, express to you that he was uncomfortable with your sexual humour?

It gets very complicated.  For instance, if he never objected in any way to your sexual humour and that kind of humour is rampant throughout the workplace, you would be entitled to a severance package.  However, if your humour went above and beyond the level of verbal horseplay common within the workplace, he might not have to have objected.  Put bluntly, if you were being really gross and inappropriate, a judge would assume that you should have known that the behaviour was unwelcome without being told. 

If you sued for wrongful dismissal, the fact that your employer did not give you much of a chance to respond to the allegations might be relevant to a Judge.  If you were guilty of severe sexual harassment, the fact that they did not give you much of a chance to explain yourself would not make a difference.  If the judge, however, found that you were not guilty of severe sexual harassment, and there was no just cause, she might actually add to your damage award because of the employer’s failure to follow a fair process in investigating the complaint.  These are called bad faith damages.

At the end of the day, although there is some expectation that people uncomfortable with sexual humour will speak up, more often than not, the courts expect the person engaging in sexual humour in the workplace to make sure that people with whom they are sharing this humour are comfortable with it.  The onus is on the joker.

In future, the safest bet is to assume that everyone is uncomfortable with sexual humour unless you know otherwise.