By Alana Prochuk

These days, judicial victim-blaming isn’t just for the criminal courts – the BC Human Rights Tribunal is getting in on the act, too.  Apparently, the Tribunal thinks that women who banter about sex with their colleagues can’t possibly experience workplace sexual harassment. Their joking manner must indicate that they are fine with every possible lewd remark, uninvited fondle and intimidating email. Wait a second – doesn’t this sound a lot like rape apologists’ “she was asking for it” defense?

The BC Human Rights Tribunal has set a dangerous precedent in dismissing a claim of workplace sexual harassment on the grounds that the complainant talked jokingly about sex with her colleagues. Adele Kafer, an employee of Sleep Country Canada, filed a human rights complaint after receiving an obscene email from a co-worker that joked about date rape drugs (just one of many harassing incidents). Ms. Kafer acknowledges that she participated in light-hearted conversations about sex at Sleep Country, as this was part of the workplace culture and she felt that joining in with her colleagues was important in order for her “to fit in.” The BC Human Rights Tribunal has decided that Ms. Kafer’s participation in sexual banter invalidates her claim to have experienced sexual harassment, even though Ms. Kafer clearly and repeatedly told both her supervisors and her harassers that she was uncomfortable with the harassing behaviour and wanted it to stop (as the Tribunal’s summary of Ms. Kafer’s complaint makes clear).

The Human Rights Tribunal’s judgment disturbingly conflates consensual talk about sex with sexual harassment, which is by definition non-consensual. Let’s review some basics about sexualized violence. Rape is not about sex –it’s not a matter of men’s sex drives being too powerful to control, nor a matter of women dressing too sexy. Rape is about power and domination.  And rape jokes are not playful sexual banter – they are weapons wielded against women.  As this awesome blog post makes clear, rape humour normalizes sexual assault, reassuring rapists that all men condone gendered violence and view women as objects to be exploited by men as they see fit.

The BC Human Rights Tribunal’s ruling also overlooks the fact that the harassing behaviour against Ms. Kafer specifically targeted her gender and sexuality—as evidenced by the blatantly misogynistic and biphobic nature of the continual “jokes” at her expense.  In certain circumstances, it may be possible to laugh about sex with coworkers in a friendly, consensual and sex-positive way, but when misogyny and queer-bashing rear their heads, it should be pretty damn obvious that the interaction is anything but friendly, consensual or sex-positive.

Although there is nothing inherently oppressive about consensual sexual humour, workplace power dynamics (based on employees’ differing positions in the institutional hierarchy or in the power hierarchy of society at large) can often make genuine consent difficult or impossible. We might question whether Ms. Kafer’s participation in sexual banter at Sleep Country was freely chosen, given how sexualized the work environment had become (by Sleep Country’s own admission). If she did choose to participate in sexual humour at work without feeling any kind of pressure, great –this should have zero to do with the non-consensual sexual harassment she experienced.  But if Ms. Kafer did feel pressure to chime in when her coworkers were bantering about sex, then Sleep Country is doubly at fault—for allowing the overt harassment to continue, and for tolerating a workplace climate where sexual repartee could feel expected or even mandatory.  It’s not up to individual employees to singlehandedly transform a workplace culture they find toxic.  Rather, it’s up to the management to set the direction and tone for all staff members. To blame Ms. Kafer for engaging with her colleagues in the socially expected manner is totally unfair.  It’s even more unfair to use her participation in normative workplace banter to discredit her report of harassment.

In a nutshell, the BC Human Rights Tribunal has decided that because Ms. Kafer didn’t shrink away from bawdy jokes, she had what was coming to her.  She wasn’t “innocent” enough (read: polite, quiet, modest, feminine) to look convincing as a victim of sexual harassment.

Memo to the Tribunal: Get out of the victim-blaming business. It goes rather badly with human rights.