A former server at a Vancouver restaurant has successfully challenged an attempt to dismiss her complaint of sex discrimination, which she claims created a “toxic work environment” marked by verbal, physical, and sexual harassment by male colleagues and customers.
The British Columbia Human Rights Tribunal declined to dismiss a sex discrimination complaint filed by E.K. against Giardino Restaurant Ltd. The decision means that the case will proceed to a full hearing. Tribunal Member Jonathan Chapnick issued the ruling, which details numerous allegations of a “history and pattern of abuse” towards E.K. during her three-year tenure as a server at the establishment.
Background
E.K. began working at Giardino Restaurant in July 2017 and claims that her employment was marked by consistent harassment from male colleagues and customers. She alleges that senior male staff regularly engaged in verbal and physical abuse, made sexualized comments, and tolerated or even encouraged harassment from customers.
The complaint cites specific incidents, such as a senior male employee allegedly calling her “trash” in front of customers, and the restaurant manager poking her painfully in the back. It also includes allegations of unwanted sexualized behaviour, such as a bartender rubbing his penis against her backside and customers making inappropriate comments and touching her without consent.
In August 2020, following a heated incident with a senior employee, E.K. emailed the restaurant owner detailing her grievances and was subsequently called to a meeting where she claims she was terminated. The owner, however, denies this and contends that she quit her job in September 2020 after the restaurant temporarily closed due to the COVID-19 pandemic.
Evidence
E.K. has presented 18 unsworn statements from colleagues, customers, and former employees, describing a misogynistic environment at the restaurant. In contrast, Giardino submitted eight sworn statements from current employees and management, denying the allegations and asserting that E.K. never reported harassment to them.
The Tribunal noted discrepancies in the evidence provided by both parties but found that E.K.’s allegations could not be dismissed without a hearing. The Tribunal member emphasized that E.K.’s claims of continuous discrimination and harassment, if proven, could constitute a violation of the Human Rights Code.
Decision
The Tribunal’s decision addressed three key issues raised by E.K.’s application to dismiss: the timeliness of the complaint, whether the allegations could constitute a contravention of the Human Rights Code, and the complaint’s reasonable prospect of success.
- Timeliness: Giardino argued that portions of the complaint were filed late and should be dismissed. The Tribunal found that the complaint alleged a continuing contravention of the Code dating back to July 2017, making the complaint timely.
- Contravention of the Code: Giardino contended that the complaint did not allege facts that could constitute a violation of the Code. The Tribunal disagreed, noting that E.K.’s allegations, if proven, could establish that she experienced adverse treatment connected to her sex.
- Reasonable Prospect of Success: The Tribunal determined that the evidence presented by E.K., while disputed by Giardino, was sufficient to suggest a nexus between her sex and the alleged adverse treatment. This warranted a full hearing to assess the evidence and make findings of fact.
For more information, see Karageorgos v. Giardino Restaurant Ltd., 2024 BCHRT 190 (CanLII).
