Robichaud felt that after she had finally refused the sexual advances of Brennan her work was affected – she was given less work, less staff under her, etc. She claims that this shows that she is being treated differently on the grounds of her sex – specifically because of her refusal to accept the sexual advances of Mr. Brennan.
- Is sexual harassment a protected ground under sex discrimination?
- If so, did sexual harassment occur?
The administrator states that there are two main ways that sexual harassment occurs:
- quid pro quo: sex for something in return (promotion, etc.),
- making a sexual advance on someone, and they refuse, and then you make things hard on them.
However, the Tribunal does not think that sexual harassment actually occurred here, because Ms. Robichaud did not give Mr. Brennan proper notice that she thought his actions were harassment. The specific acts here were done voluntarily, according to the administrator. Sexual harassment only occurs when the acts are explicitly known to be unwelcome, as the accused persists after the notification. The administrator did not take the issue of Ms. Robichaud only doing the acts because she was scared of the potential outcomes into consideration.
- Sexual harassment is a protected ground under s.3(1) of the Canadian Human Rights Act (subsequently amended to explicitly include sexual harassment in s.14(2)).
- In order for something to be harassment, the act must explicitly be known to be unwelcome, and the accused must persist after the notification.
This decision was overturned on appeal; the court decided that sexual harassment did occur, and they accepted Robichaud's claim that she only submitted to the acts because she was afraid of potential outcomes in the workplace. The liability of the employer for the actions of Brennan was appealed to the Supreme Court.