Picking and choosing when it comes to sexual harassment

Sheila had been working for Derek as a dental assistant in his practice for 11 years. During the last year of her employment, Derek mentioned on a couple of occasions that he thought Sheila’s clothes were too tight and were a bit too revealing and distracting. Sometimes he would ask her to put on her lab coat. He told her that it wasn’t good for him to see her wearing things that accentuated her body.
 
They had a friendly relationship and were prone to texting each other outside of the workplace.  Sometimes it was just updates on their kids’ activities and other mundane matters.
 
Once, Derek told Sheila that if she saw his pants bulging, that meant her clothing was too revealing. Another day, he texted her that the shirt she had worn that day was too tight.
 
When Sheila made a comment about the infrequency about her sex life, Derek said that was like having a Lamborghini in the garage and never driving it. On another occasion Derek texted her and asked her how often she experienced an orgasm. Sheila didn’t answer.
 
Before I go further with this story, let me make this clear that when this matter reached a courtroom, Sheila never claimed that she felt sexually harassed. She didn’t take the dentist’s comments seriously, did not feel uncomfortable and never felt that he was trying to make a move on her.
 
When Derek went away with his kids and Ann, his wife, stayed home to look after the dental practice, she found out that Derek and Sheila had been texting each other outside of work.
 
Ann decided that Sheila was a threat to her marriage and was concerned that Sheila liked to hang around after work when just Sheila and Derek were there. 
 
Ann laid down the law and Derek complied. He terminated Sheila, indicating that his relationship with her had become a detriment to his family and the two of them should not work together. He told Sheila that she had not done anything wrong or inappropriate and that she was the best dental assistant he ever had. He said he was concerned he was getting too personally attached and that he might be tempted to have an affair with her down the road if they kept working together.
 
Sheila claimed that she had suffered discrimination on the basis of her gender. After all, if she had been a man, she wouldn’t be out of a job.
 
Derek argued that it had nothing to do with gender but had everything to do with his particular relationship with her. He had nothing against employing women. He only had women working for him in his dental practice.
 
Ultimately, the court conceded that it had to decide whether it was discrimination on the basis of gender to terminate an employee simply because the boss viewed the employee as an irresistible attraction. Sheila did nothing more than develop a friendly relationship with her boss who she liked until the day he fired her. Put another way, it may be very unfair and immoral to terminate you because you are so darn good looking, but it is not discrimination on the basis of your gender, rather your particular and individual attributes. Just because it’s unfair does not mean it’s a human rights violation.
 
How do you think the court decided?
 
First you should know this was an Iowa case. Sheila lost. The court decided that this was an isolated decision based on a personal relationship rather than a decision based on gender itself.
 
Although I am unaware of any Canadian cases on point, I have no doubt about how this case would have ended before any tribunal in Canada. Sheila would have won. Nobody said that Derek had sexually harassed Sheila because Sheila didn’t take it seriously and did not feel at all uncomfortable. But it’s clear that if he had harassed her, he would have been liable. So, why shouldn’t he be liable if he fires her out of fear that if she staid he would end up harassing her?  If this is a good defense then one should be able to refuse to hire women at all so as to avoid falling into the temptation of Eve.
 
One cannot help but believe that hidden beneath the surface of the Iowa court’s decision is a touch of that ugly patriarchal notion of women as temptresses turning the heads of innocent men. Cover them up. Hide them away. It is the natural order of things that men cannot resist their temptations and must protect themselves and their families. The word” barbaric” is insufficient to describe these attitudes.
 
As published in the Hamilton Spectator, January 21, 2013
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com