Stand-up comedian harassed at work doesn’t have a legal case

During her stand-up routine at a corporate event in Toronto, 16-year comedy veteran Jen Grant was repeatedly ‘heckled’ by a male audience member.

She wrote in a blog post about the show, “I get introduced to the stage and within about three minutes I am interrupted by a male (late 30′s/early 40′s) saying to me ‘There’s a 51 per cent chance that my buddy here will have sex with you, and I will take the other 49 per cent.’”

Towards the middle of her set, after enduring further “rapey” comments by the audience member who works for TC Transcontinental, Grant left the stage in tears. “I’ve done a lot of hard gigs with hecklers,” said Grant. “But this was beyond heckling. This was harassment.”

It’s been a couple of weeks now since Grant first alleged she was “sexually harassed at work.” From fellow comedians and media pundits through bloggers and comments section enthusiasts, people of every socio-political stripe and moral (in)sensibility have offered, and continue to offer, their two cents on the subject. The top comments on online articles covering the story are invariably those expressing support for Grant and contempt for the ‘heckler,’ though it remains apparent that her story has had a somewhat polarizing effect on public opinion.

Most commentators sympathetic to Grant’s situation have seen it as indicative of the explicit sexism female comedians routinely face. Comedian Brent Butt recently drew a categorical distinction between heckling and harassment when he tweeted, “I’ve been a stand-up comedian for 28 years, and NOT ONCE have I been ‘heckled’ with sexual threats. I also don’t know of any other male comics who have been sexually threatened. Yet most female comics get that within their first week.”

The most upsetting part of the Grant incident may be that, despite the outrage and online hubbub her testimony has created, Canadian law continues to lack sufficient channels for practicable redress with respect to the sort of sexual harassment Grant suffered. Under existing labour laws, it’s rather unclear whether or not her ordeal can even be considered a case of bona fide, litigable sexual harassment.

According to Division XV.1 of the Canada Labour Code, “‘sexual harassment’ means any conduct, comment, gesture or contact of a sexual nature that is likely to cause offence or humiliation to any employee.”

The problem is that Grant, as a comedian hired to perform gigs on a contractual basis, is in the eyes of the law an independent contractor, not an employee. In other words, her freelance capacity severely limits the protection she would otherwise receive via employer liability.

According to the global law firm DLA Piper, “part of the rationale in excluding independent contractors from the purview of harassment laws was that independent contractors are not compelled to endure harassing situations to the same degree as employees.” However, low-wage contract workers (like stand-up comedians) are often forced to put up with harassing situations anyway because they are completely dependent on a limited number of employers for work. And of course women of this occupational status are by and large the most common and vulnerable targets of harassment.

As it stands, Grant filing a lawsuit against her ‘heckler’ would be tantamount to professional suicide. She would be paying huge sums out of pocket for legal fees in a case whose outcome is dubious. Even if she reached a settlement, unless labour law is radically revised, there is no guarantee that comedy club owners wouldn’t stonewall her based on the public demonstration that she won’t play ball.

So where should she turn? Perhaps to where she already did: the internet. Through social media, Grant’s story has gone viral. The PR protocols of big business, if nothing else, has dictated TC Transcontinental’s decision to suspend the employee with pay that harassed, not heckled, Jen Grant. One only hopes the current hype around her transfers to future employment opportunities––and doesn’t, instead, preclude them.

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