Sexual harassment in the workplace exists on a spectrum. It can range from unwelcome comments of a sexual nature to sexual assault. Discipline is determined by where the sexual harassment falls on that spectrum. While sexual harassment in the workplace has long been prohibited by the courts and occupational health and safety regulations, adjudicators have begun to account for social context. In other words, misconduct that may have garnered a “slap on the wrist” a few years ago is treated more seriously by courts and tribunals.
This shift is illustrated in the Alberta Court of Appeal’s decision in Calgary (City) v. Canadian Union of Public Employees Local 37, [2019] A.J. No. 1369. There, a male employee grabbed and squeezed a female employee’s breast. The City of Calgary terminated the harasser’s employment. The union grieved and an arbitrator found that the employee’s actions, while serious, did not warrant termination of employment. A nine-month suspension was substituted in place of termination. In reaching this conclusion, the arbitrator considered the action to be at the lower end of the sexual harassment spectrum because:
- it was a single incident;
- the complainant did not appear to be traumatized in any significant way;
- there was no evidence that this was anything but an impulsive, ill-thought out, isolated incident; and
- there was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment.
The City of Calgary appealed the decision. The Alberta Court of Appeal overturned the arbitrator’s decision, noting that “[a]rbitrators must consider whether time and changing social values reveal precedents to be based on faulty assumptions about acceptable sexual conduct in the workplace.” Social context must be taken into account when assessing the appropriate level of discipline. There is a greater understanding of both the prevalence and impact of sexual harassment in the workplace. The court expressed concern that the arbitrator referred to the misconduct as “sexual annoyance” – not sexual assault – notwithstanding that the misconduct involved purposely grabbing a fellow employee’s breast without consent. In a forceful ruling, the Court appears to adopt a zero-tolerance policy for sexual assault in the workplace:
“There is absolutely no place in the workplace for touching, rubbing, forced kissing, fondling or any other physical contact of a sexual nature where one party does not consent. It is objectively clear that sexual assault is wrong and acknowledging that sexual assault is serious misconduct sends a strong message to all employees about societal values and acceptable workplace behaviour.”
Sexual harassment has never been permitted in the modern workplace. However, it has and does occur. The above decision exemplifies how society’s increased understanding of the impact and prevalence of sexual harassment has filtered into the judicial system.