Western Pacific Engineering Group and its owner discriminated against a former female employee on several occasions by making comments of a sexual nature connected to their brief, extramarital affair, the British Columbia Human Rights Tribunal has ruled.
While the Tribunal rejected the majority of the employee’s claims, including sexual harassment during three alleged encounters and wage-based discrimination, it ruled that some of the owner’s remarks and actions constituted sex discrimination in employment contrary to Section 13 of the province’s Human Rights Code.
Background
E.d.L.G. began working at Western Pacific in December 2017. Initially employed on a one-day-per-week basis, she gradually moved into a full-time role, supervised directly by F.M., the owner. Western Pacific specializes in structural engineering for residential projects and civil design services, often working with developers, architects, and homeowners. At the time in question, the business operated out of the lower floor of F.M.’s home.
The complainant alleged that between January and October 2019, F.M. sexually assaulted her three times and made numerous sexualized comments at work. She also claimed discrimination in her wages, alleging that despite an agreement to match her pay to that of another employee, Mr. V., the company failed to follow through, resulting in her being paid less.
The respondents denied the allegations of unwanted sexual conduct, describing the three-week intimate involvement as a “consensual sexual relationship” and extramarital affair that both parties engaged in voluntarily. They argued that several months after the affair ended, the complainant resigned due to unrelated personal reasons involving conflicts between her husband, Mr. R., and F.M. They further maintained that the pay differential was based on legitimate, non-discriminatory factors, including experience and qualifications.
Dismissal of complaints
After a bifurcated hearing on liability, the Tribunal dismissed many of the complainant’s claims. It found that although there were three sexual encounters in early 2019 between the complainant and F.M., the complainant did not prove they were unwelcome. According to the decision, the Tribunal considered whether the complainant’s evidence was credible and reliable, ultimately concluding that these encounters appeared to be consensual acts rather than instances of sexual harassment.
The Tribunal Member noted that to establish sexual harassment as discrimination, a complainant must show the conduct was unwelcome and of a sexual nature, leading to an adverse impact on employment. In the ruling, the Tribunal states that while the complainant felt pressure due to a perceived power imbalance — F.M. was her direct supervisor and the company owner — there was no direct evidence that he threatened her or tied sexual involvement to her job security.
The decision reads, “He never told her that she had to participate in sexual acts with him to keep her job.”
Instead, the Tribunal found that the complainant took active steps and, at times, initiated or cooperated in the sexual encounters. For example, during the January 18, 2019 incident, the ruling notes that the complainant’s own testimony revealed participation that was inconsistent with the idea of unwelcomeness. On January 22 or 23, 2019, she turned on a video before going with F.M. to the bathroom, which the Tribunal found more consistent with foreknowledge and consent. Similar findings were made regarding the February 8, 2019 encounter, where the complainant returned to sexual activity after a pause.
Some conduct was discrimination
However, not all of the complainant’s claims were dismissed. The Tribunal found that certain remarks and conduct by F.M. in the months following the end of the affair amounted to discrimination. Notably, it found that between March and October 2019, F.M. made a comment about how if he had known his wife’s sexual past before marriage, “he would not have married her.”
The decision states this was of a sexual nature and adversely impacted the complainant, leading her to become upset and leave work. The Tribunal held this comment was discrimination under Section 13 of the Code, as it “was of a sexual nature, making her sex a factor in the adverse impacts she experienced.”
The Tribunal also found that in July 2019, F.M. asked the complainant, “how she was feeling since he was not flirting with her or ‘being that way’ with her anymore.” This reference to past sexual behaviour also amounted to discrimination, the Tribunal concluded. A third instance of discrimination occurred on October 16, 2019, when F.M. mentioned having “good memories” of a hotel they had visited for a sexual encounter and said he had been having dreams about her. According to the Tribunal, this statement, too, was a sexualized reference to their past affair and caused an adverse impact on the complainant’s work environment.
Additionally, the Tribunal found that in October 2019, after the complainant’s husband confronted F.M., the respondent restricted the complainant’s access to the business’s email and document management systems without a legitimate non-discriminatory reason, at a time when F.M. and his wife were considering terminating her employment. This caused the complainant stress and anxiety, constituting a further adverse impact related to her sex.
Constructive dismissal
On the claim of discriminatory constructive dismissal, the Tribunal rejected the complainant’s argument that the cumulative effects of discrimination forced her to resign on October 23, 2019. It found that while there were some discriminatory comments and acts, they were not so severe or pervasive as to create a poisoned work environment that would leave a reasonable person no option but to depart. The decision states, “She provided no evidence… that explains how [the discriminatory conduct] caused her to fear for her safety at work.”
The wage discrimination claim under Section 12 of the Code was also dismissed. Although the complainant proved that she was female and Mr. V. was male, and that he earned $1 or $2 more per hour, the Tribunal found that Mr. V. had significantly more industry experience and undertook more complex tasks independently. These factors justified the pay difference as non-discriminatory.
In conclusion, the Tribunal found that the respondents discriminated against the complainant by making certain sexualized comments and by cutting off her access to work-related accounts as they considered termination of her employment. It dismissed the majority of her claims, including sexual harassment regarding their three encounters, any claim of a poisoned work environment that would justify constructive dismissal, and wage discrimination. The Tribunal ordered the respondents to “cease their contraventions” and refrain from similar conduct. The remedy phase, addressing potential compensation, will be determined at a later date.
For more information, see de Leon Gonzales v. Western Pacific Engineering Group Ltd. and another, 2024 BCHRT 295 (CanLII).
