Two recent decisions from the Ontario Court of Appeal demonstrate that courts are moving away from assessing the severity of sexual harassment on a "spectrum," and towards treating every incident of sexual harassment as serious.
Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) dealt with a manager who was terminated after a single incident of slapping a female subordinate on the buttocks. The employer had in place a "zero tolerance" policy for harassment and discrimination, and a progressive discipline policy, which stated that where the misconduct is of a severe nature, the progressive discipline may be accelerated to match the situation.
Despite these policies, the employer's work culture was informal and oftentimes inappropriate. Banter and jokes of a sexually suggestive nature were common, and male coworkers were in the habit of slapping each other on the buttocks as a joke. It was during such an incident of banter that the manager slapped his subordinate on the buttocks, describing it as an accident. After an investigation into the manager's conduct, the decision was made to terminate his employment, despite his spotless thirty-year disciplinary record.
The trial judge dismissed the manager's wrongful dismissal claim, holding that his position of authority, his responsibility to maintain a respectful workplace, the sexual nature of the conduct, and his lack of contrition were sufficient to justify termination.
In upholding the trial judge's ruling, the Court of Appeal held that an employer does not have a duty to consider other, less severe sanctions before terminating an employee. So long as termination is proportionate to the severity of the conduct and the surrounding circumstances, it is justified. The Court of Appeal also rejected the manager's argument that similar misconduct had been treated with leniency in the past, noting that while past practices are relevant in the consideration of whether the termination was for just cause, treatment of other employees must not overwhelm the analysis, and cannot be determinative.
For employers, a critical aspect of the Render decision is the Court of Appeal's criticism of the workplace culture, describing an atmosphere of sexual jokes and remarks as one that cannot be tolerated. Justice Feldman emphasized the importance of maintaining a respectful and appropriate workplace culture, remarking that "an atmosphere of mutual respect will naturally generate the boundaries of behaviour that should not be crossed."
In Hucsko v. A.O. Smith Enterprises Limited (2021 ONCA 728) an employee was dismissed for cause after making several sexual remarks towards a female co-worker and refusing to apologize after being ordered by his employer to do so. Like in Render, the employer in Huscko had policies in place prohibiting sexual harassment.
The trial judge found that the employee's conduct had not risen to the level justifying summary dismissal. This ruling was based largely on the trial judge's finding that it was unclear whether the employee's conduct constituted sexual harassment. The Court of Appeal reversed this ruling, finding that the employee's comments clearly constituted sexual harassment, sufficient to create a poisoned work environment. When read with the respondent's lack of contrition, lack of understanding of the seriousness of his actions, and refusal to apologize, his termination was proportionate and wholly warranted.
Takeaways for Employers
There are two key principles emerging from these cases that employers should be aware of.
The first is that every incident of sexual harassment must be treated seriously. It is no longer the case that sexual jokes and banter and singular incidents of touching might be considered at the "middle" section of the spectrum; courts will now treat every incident of sexual harassment as a serious matter.
The second is that while policies aimed at preventing sexual harassment are of critical importance, they are only as good as the extent to which they are enforced. Employers must take steps to ensure that they maintain a respectful workplace, where workers abide by policies regarding harassment and bullying.
The lawyers in Lawson Lundell's Labour, Employment & Human Rights Group are experienced in developing and revising bullying and harassment and anti-discrimination policies and practices, as well as conducting harassment investigations in circumstances that warrant third-party investigation. Please do not hesitate to contact a member of our group if your business requires assistance complying with legal obligations in respect of preventing and addressing workplace bullying, harassment, and discrimination.
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