The Alberta Court of Appeal has ruled that workplace sexual harassment cases must be decided in accordance with today’s heightened social awareness of sexual violence.
In the recent case, Calgary (City) v. Canadian Union of Public Employees Local 37, [2019] A.J. No. 1369, the Court overturned an arbitrator’s decision to reinstate an employee who was terminated for groping a female employee’s breast. The Court ruled that the arbitrator’s conclusion was unreasonable in light of current social attitudes and expectations around workplace sexual misconduct.
Notably, the Court explained that social context is “intimately connected” to assessment of a grievance relating to sexual harassment. Relying on current academic authorities, the Court took notice of social facts, including that economically vulnerable women are most often the targets of sexual harassment. Facts such as these were important in defining the “social framework” in which the case was to be adjudicated.
The Court went on to caution against relying on dated arbitral authorities which are “based on faulty assumptions about acceptable sexual conduct in the workplace”. The Court also rejected inferences relating to the “expected” conduct of the victim, which have long been deemed impermissible in the criminal context. The Court made clear that the criminal law on this point is applicable to workplace sexual harassment.
Calgary (City) demonstrates that the law relating to workplace sexual harassment is rapidly changing. For more information about preventing and responding to workplace sexual harassment, please contact your Harris lawyer.