As Howard Levitt of the Financial Post said, “The line between sexual banter and harassment can sometimes be indistinct, even blurred.  But crossing it is costly,” as a general manager of a Canadian restaurant in Ottawa found out when he sexually bantered with a waitress who he supervised and then propositioned her. 

The manager often socialized with the staff, where all engaged  in “sexual banter and off-colour jokes.”   A female employee known as “S.S.” was the subject of his lewd comments during a card game, and a subsequent  “salacious text message.”  S.S. “hoped it would blow over and assumed, if she did not respond, [the manager]  would understand that his comments were unwelcome.”  However, when the manager left her a sexually explicit voicemail communicating a desire to have sex  with her, she resigned and sued alleging sexual harassment.

The vice-chairwoman of the Ontario Human Rights Tribunal found that the manager was in a position of power over S.S. because he determined who worked the more lucrative shifts.  Therefore, his voicemail amounted to sexual solicitation in violation of the Human Rights Code.  The court held that since the manager’s solicitation of sex was directed at S.S. personally he should have known that it was unwelcome, despite S.S.’s admission that she participated in the general “sexual banter.”  (This part is a little confusing!).

Levitt provided some helpful tips to employers to avoid liability in such cases, which we reprint here with some editing in the interest of brevity:  [US employers should pay attention to this]


Banter is not consent  Just because an employee shows no offense to a general sexual joke does not connote her agreement to a specific sexual advance. 

Power imbalance  [This is important)  Managers and supervisors are presumed to wield authority over staff. The mere fact that employees don’t object or even laugh at a manager’s sexual comments does not mean they find it welcome. The tribunals presume that subordinates are too intimidated to protest.

Location and timing is irrelevant The comments and messages S.S. received were made after hours or off-site but sexual harassment does not have to occur during the workday or inside the workplace to create liability. The test is whether the employee reasonably perceives the manager’s behaviour as adversely affecting her conditions of employment.

Educate staff  Invest in training and raising employee awareness as to the boundaries of acceptable conduct. The dividend is preventing a costly human rights proceeding with the deck stacked against the employer in most provinces.