Developments in the Law on Sexual Misconduct in the Workplace, Two Years After #MeToo

By Kai Ying Chieh

October 15, 2019 marked two years since the hashtag #MeToo went viral on social media. In 2017, use of the hashtag was championed by a number of prominent celebrities as a means by which to spread awareness about the ubiquity of sexual abuse and harassment in Hollywood. Not only did the movement bring attention to the allegations against Harvey Weinstein and a number of other senior names in entertainment, it also shone a spotlight on sexual misconduct in the workplace across industries in all sectors.

It is no surprise that now, two years later, employers continue to have questions about identifying and properly responding to sexual misconduct in the workplace. While the use of the hashtag has faded, during recent months developments in the law on sexual misconduct continue to emerge. Widespread cultural awareness of #MeToo has translated into broad recognition of the need to have a comprehensive legal framework that properly addresses sexual abuse and harassment, while fairly maintaining existing rights and obligations of employees in the workplace. This newsletter will canvass some of the most recent developments in the law on sexual assault and harassment in the workplace and provide key takeaways with respect to managing these claims.

Changes to the Canada Labour Code ("CLC")

On September 1, 2019 a host of amendments came into force which made significant changes to the Canada Labour Code, which governs federal employees across Canada. However, further amendments with respect to the occupational health and safety requirements for federal employees are anticipated to come into force in 2020.

Key among these amendments is the imposition of employer duties with respect to workplace "harassment and violence", defined as "any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment". The changes will require employers to perform such measures as conducting workplace assessments to identify risks of harassment and violence, implementing preventative measures to protect against risks, and preparing workplace harassment and violence policies.

For provincially-regulated employers, a bullying or harassment claim, including sexual harassment, that gives rise to mental disorder has been compensable under the British Columbia Workers' Compensation Act since 2013, and employers have had concomitant duties to prevent workplace bullying and harassment since that time. In that sense, the changes to the CLC do not represent a significant departure from the occupational health and safety framework that exists under other jurisdictions. However, the express reference to action, conduct or comment of "a sexual nature" under the federal legislation makes clear that legislators are conscious that workplace health and safety regulations must apply to sexual misconduct, and are willing to hold employers accountable for this aspect of health and safety in the workplace.

Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388

Recognition of the impact of sexual assault in the workplace has not been restricted to legislative changes. The Alberta Court of Appeal recently ruled on a judicial review of a case involving a sexual assault in the workplace. A unionized worker was accused of groping a colleague's breast without her consent, and the City found it to be a breach of the City's Respectful Workplace Policy, justifying the termination of his employment. After a grievance and labour arbitration, the grievor was reinstated. Upon judicial review, the reviewing judge dismissed the application.

Upon review at the Court of Appeal, the Court's analysis focussed on the legal test for determining whether there was just cause for discipline, known as the William Scott framework. The test requires an assessment of the context, including whether serious misconduct occurred. The Court of Appeal noted that the arbitrator in this case did not call the misconduct sexual assault, thus minimizing the seriousness of what occurred despite the fact that there could be "no doubt" that the conduct in issue was a sexual assault. The arbitrator had further relied on outdated legal precedent that was inconsistent with modern society's view of acceptable conduct in the workplace. The Court of Appeal noted that provisions directed at sexual harassment and violence in the workplace had been introduced to Alberta's provincial health and safety legislation, demonstrating the changing culture and social expectations in the modern workplace.

Ultimately, the Court of Appeal emphasized that sexual assault is serious misconduct in the workplace and that the arbitrator did not properly analyze the factors before her, leading to a flawed decision-making process that was the basis for overturning the arbitrator's decision and remitting the matter to a new arbitrator.

Summary

These ongoing developments both in legislation and before the courts speak to two key takeaways that employers must consider with respect to how sexual assault and harassment is managed in the workplace:

1. Legislators and courts have made it clear that employers have a legal obligation under health and safety legislation not only to address sexual harassment in the workplace when it happens, but also to take steps to prevent it. Employers may be required to cooperate with administrative bodies like WorkSafeBC either in the context of claims for compensation based on sexual harassment in the workplace, or complaints of an unsafe work environment, and must be careful lest an investigation reveal a failure to comply with these duties. Clear policies and procedures, including Respectful Workplace Policies, can both fulfil employer obligations and help employees define the boundaries of appropriate behaviour in the workplace.

2. It may seem to be the path of least resistance to minimize sexual misconduct in the form of impulsive, non-consensual touching, particularly in casual or close-knit workplaces. However, the courts have sent a strong signal that those faced with deciding how to respond must approach it from the perspective that sexual assault is the most serious form of sexual harassment and is strictly out of line with what is acceptable in the modern workplace.

Employers receiving complaints of sexual assault or harassment in the workplaces should be cognizant that while the #MeToo movement may have passed, lawmakers' scrutiny upon sexual misconduct in the workplace has not dissipated. We strongly encourage employers to seek assistance upon receiving a complaint of sexual assault or harassment to ensure that any investigation is properly conducted and a course of discipline, if warranted, is proportionate and responsive to the nature of the misconduct.