Case study 1: Darlene

This scenario is based on the real-life human rights case of Noffke v. McClaskin Hot House.

As part of a government program, Darlene, a grade 12 graduate, got a job with a local garden nursery.
She was to help Mr. M., the owner, tend plants and shrubs, place orders and serve customers.

Mr. M's first review of Darlene's work showed that she was performing all her job duties exceedingly
well. It was obvious that Darlene liked the work.

Over the next three months, Mr. M's behaviour toward Darlene began to change. As they worked, he
would often put his hands on her shoulders and hips or lean over closer to her. At these times, she would
quickly draw away from him. He then began to make offhand remarks about how he was sick of his wife
and that he needed “satisfaction” from another woman.

Darlene did not encourage the comments or actions, nor did she say anything against them. However,
she was becoming increasingly uncomfortable with the situation and tried to avoid the owner as much
as possible. One day, Mr. M. asked her for a kiss. When she refused, he said “I know what's wrong with
you. You're scared you're going to like it.” A few days later, Mr. M. suggested that she come to his
apartment to have sex with him. Darlene firmly refused, saying that she was seriously involved with her
boyfriend. On several other occasions, the owner tried to get Darlene to come to his apartment.

In June, Mr. M. terminated Darlene's employment, saying he had no work for her, even though June is
the busiest month of the year for the nursery.

Group discussion questions:

Did the nursery owner violate the Human Rights Code? If so, how?

When Darlene first became uncomfortable with the nursery owner's behaviour, why wouldn't she have
said something?

In this situation, would Darlene have had to say anything to the nursery owner for him to know that he
might be violating the Code?

Is Darlene's termination a factor when assessing if her rights were violated?

Discussion points:

Was the Ontario Human Rights Code violated? Yes, it was. Darlene's employer sexually harassed her. He
repeatedly touched her. He said he was sick of his wife and needed satisfaction from another woman.
And, he asked her to come to his apartment to have sex with him.

Why didn’t Darlene speak out when she first became uncomfortable with the owner's behaviour? Maybe
she was too frightened, too shy, didn't know how to stop it, or didn't want to lose her job. These are all
feelings that can happen when someone is being harassed by someone who is in a position of power
over them, whether it be a boss, a landlord, a teacher, etc.

Would Darlene have to say anything to the owner for him to know he was violating the Code? No. The
Code recognizes that some forms of harassing behaviour are commonly recognized as unwelcome or
unwanted. There are also people who may harass others because they think they can get away with it.
That is why the definition of harassment includes the words “ought reasonably to be known to be
unwelcome.” Even withdrawing from his touching was enough to let the owner know his actions were
unwelcome. We can make someone know that an action is unwelcome through our body language, such
as turning away, or by communicating verbally and telling them so.

Was Darlene's termination from her job a factor in assessing whether her rights were violated? Yes. The
owner violated the Code on a second count by terminating her after she rejected his sexual advances.
This is called “reprisal.” Why else would he terminate her employment when she was performing her job
well and it was the busiest time of the year for his business? It is a violation of the Code when a person
in a position of authority penalizes or threatens an employee for not complying with a sexual demand. A
finding of discrimination may be made if discrimination on a Code ground was one factor in the decision
to terminate employment.

In its finding, the Tribunal ordered the owner to pay Darlene $2,750 for mental anguish and $240 for lost
wages. It also ordered the owner to post a copy of the Code at his business site and, for a two-year
period, to inform the OHRC (which used to monitor settlements and decisions) any time he terminated a
female employee.

Having a separate provision for sexual harassment in the Code recognizes that many harassment
complaints are sexual in nature and commonly committed by people in positions of authority.
Sexual harassment is not, however, limited only to male-female situations. It can also occur between two
men, two women or woman to man.