Employee Awarded Over $23,000 for Employer’s Withholding of Work when Jealous of her Sexual Relationships with other Men

Young woman on scaffolding by roof

Tribunal Member Emily Ohler issued her reasons on June 10, 2020 for allowing a woman’s complaint regarding sexist discrimination in employment and retaliation.

The complainant LL had worked for a roof repair company from 2009 to 2017. She and the owner of the company, DM, began a personal, sexual relationship around 2011. Following an eight-day hearing, the Tribunal held that although DM did not exploit LL’s reliance on him for work by making work conditional upon her having sex with him, he did “impose adverse employment-related consequences on LL for issues arising from their personal relationship rather than the employment sphere,” and that LL’s sex was a factor in these consequences. The Tribunal also held that DM retaliated against LL in breach of section 43 of the BC Human Rights Code by texting a link to a pornographic video LL appeared in to her cousin and others.

DM had a wife who did not like LL. At some point, he apparently confided in LL about his unhappiness at home with his wife. And then the relationship between LL and DM began. LL’s evidence was that she never enjoyed having sex with DM or wanted him to leave his wife for her, but went ahead with the relationship because she thought she needed to in order to work for DM. DM’s evidence was that LL was a manipulator who used her sexuality to exploit him for financial and other benefits.

At paragraph 72, the Tribunal stated the following about the facts:

While I accept that LL exercised a high degree of autonomy and independence in her own life as well as in her relationships with the Respondents, as I will discuss further below, it is clear to me that DM understood how to exercise his own kind of control in the relationship when he became jealous or had his feelings hurt. As I will discuss, he did so by not showing up when LL counted on him, reclaiming the cars that he had given her, or – central to this complaint – withholding work.

At paragraphs 134 and 135 of the decision, the Tribunal Member sets out how DM imposed adverse employment-related consequences on LL when he was jealous about her having other men in her life:

[134] I do, however, find that there were occasions on which DM withheld work from LL when he became jealous or his feelings were hurt. On this point, I accept that LL sought to ‘keep DM happy’ in the relationship in part to avoid such repercussions. While it is undisputed that she derived a number of benefits from the personal relationship, I accept that she could not have normal relationships with other men in the way that she wanted to and that the possibility of a
fight with DM impacting her work adversely impacted her.

[135] In particular, on a balance of probabilities, in the context of the evidence of both LL and DM, and LL’s journal entries, I find that on the day of the February 2016 Incident in 2016, and on September 22, 29, and October 22, 2017, DM either did not pick LL up or did not tell her about where to go for work, and that he did this specifically in response to his feeling jealous about other men in LL’s life.

The tribunal stated the following about why these actions were in breach of the Human Rights Code:

[175] I am satisfied that LL has met her burden on a balance of probabilities in establishing that she experienced an adverse impact in her employment related to her sex. In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 [Araniva], the Tribunal found that an employer’s decision to reduce an employee’s hours of work because the employee declined an invitation to socialize with him constituted a breach of s. 13 on the basis of sex. Here, DM’s jealousy over LL’s sexual relationships with other men cannot be extricated from her sex. DM imposed employment‐related consequences because that was one place where he had power
over LL when his feelings were hurt in their personal relationship.

[181] While I have not found that DM coerced LL into sex with the promise of work, I do find that DM periodically withdrew or withheld work when he became jealous or, in his words, his feelings were hurt, by LL’s standing him up or being with other men. This is, in fact, undisputed. DM explained that he loved LL, and so his feelings would be hurt when LL spurned him by not seeing him or by seeing someone else. DM would deny LL work simply because he stopped speaking to LL entirely during these periods when his feelings were hurt. This is not a defence, but an admission. DM was the boss. If DM’s feelings got hurt because he loved LL, with whom he was in a sexual relationship, it was his responsibility to put those feelings aside and treat LL fairly in the workplace regardless.

After LL filed the complaint, DM sent her cousin a pornographic video that she had appeared in many years ago when she was 19 years old. He knew the video upset her and would bring it up when he was angry at her.

Ultimately, the Trinbunal awarded LL $640 damages for the days it ruled she was denied work due to DM’s jealousy. It also awarded the complainant $15,000 for injury to her dignity, feelings, and self-respect in relation to the discrimination complaint and $7,500 for the retaliation.

The Tribunal stated the following about the retaliation damages:

It takes courage to file a complaint. In particular, LL’s complaint required her to publicize highly private, intimate details about her life. I view DM’s actions, taken in the context of his comments that the video showed people that LL is a “nasty” person, as depending upon and looking to further stereotypes about women generally and sexually active, sex‐positive women in particular. He wielded this as a weapon in response to his anger about LL’s complaint. Such actions must be discouraged.

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