Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYpeople and to knowing it.Q. Okay, so from a legal perspective, if a sex worker wanted to bring a sexual harassmentclaim against a client, the first thing a court would say is where do you drawthe line basically.A. Woah, woah, woah. I’m sorry, I misunderstood you, I thought against the pimp.Q. Oh no, I meant sort of more, certainly against an employer, but also against a client.A. Okay, from the point of an employer I think yes, they are the ones that take advantage,they’re the ones that believe in free sampling of the wares. You know? You’d besurprised.- female off-street out-call sex workerBusiness owners agreed that sexual harassment by employers should be prohibited. They suggestedthat, because of the nature of the work, sexual advances by employers is more prevalent in workplaceswithin the sex industry than in other industries.A. In the employee-employer relationship there should be [a place for sexual harassmentclaims]. There should be no situation when an employer should ever be involved withstaff. Absolutely not. Well if it were like other work places you would want to saythat the owner of the business or the employees – the office staff or whatever – wouldnot really be able to grope the escort, that that wouldn’t be fair game. In the escortfield, people tend to be a little more open minded about their sexuality than in otherwork places, so there might be a certain amount of kidding around, and, you know,hugging and kissing, and stuff that might be off limits in an office environment thatwe would think nothing of in our business. For instance a lot of my ladies will go tomy photographer’s place and studio and be photographed in various stages of dressand undress. You know, nothing dirty goes on but he sees them walking around andtakes their pictures and so on and so forth. That wouldn’t fly in an office environmentbut it makes perfect sense given what they’re up to in their work.- female escort agency owner, former sex workerIt is clear from the opinions and experiences conveyed that sex workers must receive the full protectionof the law from harassing employers. Sex workers, perhaps more than other types of workers,endure sexual harassment from employers on a regular basis.Sexual harassment by clientsMany sex workers described experiencing unsolicited and unwanted sexual advances at the handsof clients, although they doubted that a clear line could be drawn between contracted sexual servicesand sexual harassment. Nevertheless, many sex workers want protection from unwanted touching,verbal insults, and coercion by clients. Many of the sex workers we interviewed stated that theyfrequently experience unwanted behaviours on the job. Sex workers generally agreed that they deservelegal protection from sexualized conduct that falls outside the scope of the agreed upon services.Although it may be difficult to draw the line between services contracted for and unwanted behaviours,it is clear that certain client acts can be considered sexual harassment, or even sexual assault,depending on the particular circumstances. It would be up to human rights tribunals to determinecase-by-case whether the conduct that is the subject of a complaint is part of the contract between aclient and worker, or whether it constitutes sexual harassment. Under the current legal regime, it isdifficult for sex workers to seek protection under human rights codes.188
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformCurrent protections against sexual harassmentThe Supreme Court of Canada has defined sexual harassment as constituting discrimination onthe basis of sex. Although the BCHRC does not expressly prohibit sexual harassment, it does prohibitdiscrimination based on sex. Consequently, even when a human rights code does not explicitlyprohibit sexual harassment, it is considered to be discrimination on the basis of sex under provincialhuman rights codes.More specifically, s. 13(1) of the BCHRC prohibits discrimination in the context of employment,or any term or condition of employment on the basis of sex, 10 as do the human rights statutes ofall other Canadian provinces and territories. In the context of employment, the Supreme Court ofCanada has defined sexual harassment as “unwanted conduct of a sexual nature which detrimentallyaffects the work environment or leads to adverse job-related consequences for the victim of the harassment.”11 Thus, it is clear that unwanted sexual behaviours, including sexual assault, in a workplaceenvironment by either clients or employers would constitute sexual harassment. Consequently, avictim of sexual assault could file a human rights complaint in addition to pressing criminal charges. 12Sexual harassment by employers in the sex industry clearly constitutes an abuse of both economicand sexual power; it undermines and demeans the dignity and self-respect of the victim, both asan employee and as a human being. 13 Provincial human rights codes provide a form of protectionfrom discrimination and harassment by making employers liable for discriminatory conduct. 14 Suchprotections are not extended to persons engaged in work that constitutes criminal behaviour. Forthis reason, sex workers who are able to argue that they are lawfully employed – such as employees oflicensed massage parlours – have greater access to the protections available under human rights codes.In addition to being held accountable for their own conduct, employers may be found liable forsexual harassment by clients. Courts and human rights tribunals have held employers vicariously liablefor sexual harassment of their employees when that harassment is perpetrated by co-workers under theemployer’s direction, and even sometimes when it is perpetrated by non-employees where the environmentis, to some extent, under the employer’s control. Under the law, employers are required to takereasonable steps to maintain a workplace free of sexual harassment. This has been interpreted to meanthat when an employer knows or should know of sexual harassment in the workplace, and fails to takereasonable steps to remedy or prevent the harassment, the employer may be held liable for violatinghuman rights statutes. In situations involving sexual harassment of an employee by a client or othernon-employee, the level of employer liability would depend on the employer’s extent of controlover the non-employee. Therefore, employer responsibility for sexual harassment by non-employeesdepends on the circumstances of each case. 15Another potential barrier to sex workers accessing full protection under human rights codes,even if adult sex work is completely decriminalized, is the fact that many sex workers are classified asindependent contractors under the law, and not as employees. Where sex workers are independentcontractors but work on contract within another business, it is likely that they would be consideredemployees for the purposes of human rights legislation, particularly when the victim and the perpetratorinteract within the workplace that is controlled by the employer. Ibid. See ss. 11-13 for the protections in the context of employment. The Code also offers protections in other contexts: see ss. 7-10, 14.10 Human Rights Code, s. 13(1).11 Janzen, supra note 7.12 Since Janzen, supra, it has been accepted in Canadian law that sexual assault can constitute sexual harassment and a victim ofsexual assault in the workplace may choose to file a human rights complaint and/or press criminal charges. Skelly v Karp (1994),B.C.C.H.R.D. 24 at para. 69 (QL).13 As explained in Janzen, supra note 7.14 Robichaud v. Canada (Treasury Board) (1987), 8 C.H.R.R. 680.15 Arjun P. Aggarwal. Sexual Harassment in the Workplace, 2d ed. (Toronto: Butterworths, 1992) at 218-222.189
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