The #MeToo and #TimesUp movements emphasize that employers must recognize and address sexual harassment in the workplace.
Sexual harassment is a form of sex discrimination that is prohibited by law. Employers must conduct adequate and impartial investigations where necessary. Furthermore (as will be discussed) employers will be responsible and/or liable by courts, tribunals, arbitrators and workplace investigators for failing to address a poisoned work environment.
The Legal Framework Considered and Applied by Arbitrators, Mediators, and Workplace Investigators.
A. What Constitutes Sexual Harassment in the Workplace?
Whether conduct can correctly be characterized as sexual harassment is determined based on the test of the reasonable person in the circumstances. Whether conduct is sexual in nature is determined on a case-by-case basis. Whether conduct is unwelcome depends on the complainant’s reaction at the time an incident occurred. The complainant must establish that she had in some way, signalled to the harasser that their conduct was unwelcome. To note, behaviour may be tolerated and yet unwelcome at the same time.
According to the leading case Janzen v. Platy Enterprises Ltd.,  1 SCR 1252 (“Janzen”), and established that sexual harassment in the workplace consists of:
- conduct of a sexual nature which is gender-based;
- conduct that is unwelcome; and
- conduct that detrimentally affects the work environment or leads to adverse job-related consequences.
Janzen is widely cited. For example, in AP v. BS (No. 2), 2013 BCHRT 257, the BC Human Rights Tribunal found that a de facto (meaning “in reality”, or effective/actual) supervisor sexually harassed a sixteen-year-old restaurant worker when he pinched her backside with metal food-tongs and made an inappropriate comment regarding her unshaven legs.
If conduct is found to be sexual in nature, and unwelcome, decision-makers (such as courts, tribunals, adjudicators or workplace investigators) will assess the persistence and gravity of the conduct to determine whether the conduct was detrimental to the work environment. The more serious the conduct and its consequences, the less repetition is necessary. Conversely, the less severe the conduct, the more persistence will have to be demonstrated.
B. Form of Discipline for Harassment as Depending on Seriousness
Sexual harassment is often viewed as falling along a spectrum of seriousness, calling for different disciplinary responses. For example, although both are forms of sexual harassment, sexual coercion is distinct from and more serious than sexual annoyance. In cases involving workplace sexual harassment, there are a number of other factors determining what would constitute an appropriate response from an employer. These include:
- the particular culture or atmosphere of the workplace;
- any power imbalance between the harasser and the victim;
- the history of the relationship between the harasser and the victim;
- the harasser’s length of service and work record;
- whether an investigation would be appropriate and necessary;
- the harasser’s participation or lack thereof in an investigation; and
- any genuine expression of remorse or admittance of misconduct.
Important Cases Applying the Legal Framework
In Robichaud v. Canada (Treasury Board),  2 SCR 84 (“Robichaud”), the complainant asserted that her employer should be held accountable for sexual harassment she had suffered at the hands of her supervisor. The Supreme Court of Canada agreed, and held that employers can be responsible for unauthorized discriminatory acts of its employees in the course of their employment under the Canadian Human Rights Act, S.C. 1976-77, c. 33 (as afterwards amended).
The Supreme Court stated that human rights legislation is remedial in that its purpose is to eradicate anti-social conditions without regard to the motives or intentions of those who cause them. Accordingly, the court found that employer are responsible for remedying the effects of discrimination and providing a healthy work environment.
The Robichaud principles have been more recently referred to in Taan Forest Limited Partnership v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-1937 (Contractors Grievance),  BCCAAA No. 3.
Sexual Harassment in the workplace consists of unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences. The appropriate discipline for this misconduct depends on the seriousness as measured by a variety of factors. Employers can be held liable for the discriminatory acts of their employees – including sexual harassment – and therefore must takes steps to provide a safe work environment and remedy the effect of any discrimination including sexual harassment.
Because of the complex unique circumstances involved with incidents of sexual harassment in the workplace, contact Neil Hain for a consultation.