Intersectional Harassment: Lessons from Grant v Yukon

A recent Yukon decision shows how easy it is to miss intersectional harm, even when the complainant wins: Grant v Government of Yukon (Department of Highways and Public Works).

What happened

Christine Grant is Inland Tlingit and a heavy equipment operator with more than 20 years of experience. She worked for the Government of Yukon's Department of Highways and Public Works.

Her foreman called the Fox Point subdivision "31st Avenue." When she asked why, he said it was because everybody up there "got their money from Bill C-31." She told him she didn't appreciate it. She said that wasn't what Bill C-31 was about, and that her family lived there. He kept saying it, about once a week, until the union got involved.

He also made derogatory remarks about beavers after she told the crew they were culturally significant to her clan. He said he should have told an elder "we don't work on Indian land." And at a crew meeting with three women present, he said: "Oh, look, we're outnumbered today, but that doesn't mean you girls get to have an opinion."

Christine brought a human rights complaint alleging discrimination and harassment on the grounds of ancestry and sex.

The Board found her foreman harassed her based on ancestry and sex. It awarded $20,000 for injury to dignity and $24,000 in lost wages. It also held the employer responsible. The respectful workplace policy existed, but there was no training and no real response when she raised concerns.

The comment the Board got half right

The Board treated the "31st Avenue" comment as harassment based on ancestry but did not consider the intersectional ground of sex.

That was despite the Board's own reasons describing Bill C-31 as a law that restored status to First Nations women. It even noted that the foreman, who was married to a First Nations woman, would likely have known that history.

Why the Bill C-31 dig was also about sex

For over a century, the Indian Act stripped status from First Nations women who married men without status. Men who did the same kept their status and passed it on to their wives. Women lost more than a legal label. Their children lost status too, and many women were cut off from their home communities.

Indigenous women, including Jeannette Corbiere Lavell and Sandra Lovelace, fought this for years. Bill C-31, passed in 1985, was the federal response. It was a partial fix for sex discrimination the law itself had created. Sex discrimination in the status rules has been challenged in court many times since.

So "got their money from Bill C-31" was not just a jab at Indigenous people in general. It mocked a remedy that Indigenous women fought for and won. It also recast that remedy as a cash grab, drawing on an old stereotype that Indigenous people live off handouts. Aimed at reinstated women, the message is that their restored rights were never about justice, only money.

Women reinstated under Bill C-31, and their children, have described being treated as less "real" members of their communities. The label "C-31" has been used that way. Calling a neighbourhood "31st Avenue" pinned that label on the street where Christine's family lived. Her mother was one of those women.

This is sex discrimination layered on colonial harm.

Layers of power

Harassment is an abuse of power. Here there were several layers. The foreman was Christine's supervisor (organizational power). He worked for government (colonial power). He was non-Indigenous, mocking a law meant to repair harm that government had done to Indigenous women (racial, social, and colonial power). And she worked in a male-dominated trade, where he made a point of telling the women their opinions didn't count (sexual power).

Three legal points to remember

1. People are whole, not a list of grounds. A person with multiple protected grounds is an "integrated person," not "a number of disembodied and distinct grounds." Tribunals have warned that "reliance on a single axis analysis where multiple grounds of discrimination are found [may] minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred." (Radek at paras 463–464; Baylis-Flannery at para 144)

2. Overlapping grounds can increase vulnerability. That may, but won't always, increase the damages award. (Ens at paras 183–184, 198)

3. Complainants don't have to plead intersectionality. It's part of the legal framework for deciding whether discrimination or harassment happened. (Hale at para 216)