The Federal Court of Appeal recently overturned a decision of the Federal Public Sector Labour Relations and Employment Board (“Board”), which had denied any damages to an employee who was sexually harassed and sexually assaulted in her workplace. The Court found the Board’s decision unreasonable, and criticized the Board Member’s reasons for reflecting improper stereotypes about sexual assault.
The Applicant (pursuing her case under the pseudonym Jane Doe) was subject to months of verbal sexual harassment by a co-worker, culminating in an incident that the employer acknowledged was a sexual assault. She filed a grievance against her employer for failing to provide a harassment-free workplace. The employer acknowledged that the applicant had experienced sexual harassment and sexual assault, but argued that it was not liable for the co-worker’s conduct, or that the Board had no jurisdiction to award damages.
In its decision regarding the Applicant’s grievance, the Board accepted that the Applicant had experienced sexual harassment, contrary to the Canadian Human Rights Act. The Board rejected the employer’s argument that it did not have jurisdiction to award damages to the Applicant. However, the Board found that the Applicant was not entitled to any damages. Among the reasons given, the Board stated:
- The “incident” the Applicant experienced was “a vulgar prank”;
- There were steps that a “confident employee” such as the Applicant could have taken to deal with the harassment, if the work environment had truly been as difficult to cope with as she described;
- It was “unlikely, to say the least” that the “vulgar prank” caused the “extreme emotional impact” she described.
Judgment of the Federal Court of Appeal
In its judgment issued on October 10, 2018, the Federal Court of Appeal overturned the Board’s decision. The Court held that the Board had improperly denied damages to the Applicant because the sexual assault was not solely responsible for the Applicant’s psychological injury. The Court noted that it was not in dispute that the sexual assault had caused the Applicant to experience harm, and it was not necessary for it to be the sole cause of that harm. The Court conclusively held that, “once pain and suffering caused by a discriminatory practice are established, damages should follow”.
In view of the Court’s finding that the Board’s decision was unreasonable, the Court found it unnecessary to decide whether the Board Member’s decision also gave rise to a reasonable apprehension of bias. Nonetheless, the Court chose to comment on two problematic aspects of the Board Member’s reasons.
First, the Court noted that the Board never referred to the culminating incident as a sexual assault, instead calling it a “vulgar prank”. The Court noted that there may be a number of reasons for a decision-maker to choose to use certain language; however, “it is necessary to take care not to inappropriately downplay or diminish the seriousness of unacceptable conduct. The sexual assault at issue in this case could not be reasonably characterized as a “prank”.”
Second, the Court commented on the Board Member’s apparent reliance on stereotypes about how someone would react to sexual harassment or sexual assault. Noting the Supreme Court’s caution against presuming how people who experience sexual assault will behave, the Court stated:
In my view, characterizing an employee as a “confident employee who handled the work easily and had aspirations of joining the management team” (reasons, paragraph 142) similarly does not permit an inference to be made that such an employee would react in a particular way to an escalating number of sexually explicit and violent comments made by a co-worker. One employee might complain immediately to management while another might “go along to get along”. It was an error for the Board to conclude that the applicant exaggerated how difficult it was to cope with her work environment on the basis that the Board characterized the applicant to be a “confident” employee.
Equally, because there is no one typical response by victims to a sexual assault, there was no basis for the Board to infer mainly from the applicant’s responses that the co-worker’s conduct could not have caused the harm described by the applicant. This is particularly troublesome when the Board’s own concept of logic or common sense was substituted for its assessment of the actual evidence before it.