In light of International Women’s Day, employment lawyers at Rubin Thomlinson LLP have been pondering some of the most significant court decisions for women in the workplace over the last 25 years.
Landmark rulings came quickly to mind, says parnter Janice Rubin.
“My overwhelming impression was that it’s hard to believe the law was ever not this,” she says of decisions that have become important parts of employment law and the functioning of workplaces.
Here are the firm’s chosen top 10 employment law cases for women:
1.
Janzen v. Platy Enterprises Ltd. [1989]
The Supreme Court of Canada recognizes sexual harassment as sex discrimination. The top court unanimously sided with a Dianna Janzen, a restaurant waitress who was fired after complaining about sexual harassment at the hands of a colleague. Unwelcome sexual conduct that adversely affects the work environment is sexual discrimination, the court said.
2.
Brooks v. Canada Safeway Ltd. [1989]
The Supreme Court recognizes pregnancy discrimination as sex discrimination. Sandra Brook’s employer’s benefit plan excluded pregnant women, which she alleged was sex discrimination. The court agreed in a landmark ruling that “made it impossible for employers to successfully argue that discrimination against pregnant employees was not discrimination under human rights legislation,” according to employment lawyers at Rubin Thomlinson LLP.
3.
Bannister v. General Motors of Canada [1998] and
Gonsalves v. Catholic Church Extension Society [1998]
The Ontario Court of Appeal says sexually harassing a colleague is a just cause for dismissal. In both cases, the employees alleged that their employers wrongfully dismissed them. But the court sent a clear message that employers have the duty to ensure women in the workplace are not sexually harassed and that “no female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.”
4.
Simpson v. Consumers’ Association of Canada [1999]
The Ontario Court of Appeal broadens the definition of workplace sexual harassment. The court ruled the Consumers’ Association of Canada was justified in firing David Simpson, who was an executive director, after he sexually harassed female employees outside of the office during work-related events. As far as the law is concerned, work-related social events constitute the workplace, the court said.
5.
Public Service Employee Relations Commission v. British Columbia Government and Service Employees’ Union [1999]
For Rubin, this case in particular was “a game changer.” A female forest firefighter was dismissed for failing the aerobics part of her job requirement. She alleged it was a case of sex discrimination as women generally have a lower aerobic capacity than their male counterparts. The court ruled that before employers rely on the occupational requirement defence, they must first prove the requirement is rationally connected to the job, was adopted in good faith, and is least discriminatory. The ruling means “employers really had to look into the specifics of each [accommodation] case,” says Rubin.
6.
Canadian Telecommunications Employees’ Association v. Bell Canada, [2002] and
Public Service Alliance of Canada v. Canada Post Corp. [2011]
Class actions become methods of combating systemic discrimination against women employees. Women employees fought unequal pay in these two important cases. The settlement in the first case cost Bell Canada $178 million and Canada Post was ordered to compensate 2,300 women it discriminated against between 1983 and 2002.
7.
Stamos v. Annuity Research & Marketing Service Ltd. [2002]
The Ontario Superior Court rules sexual harassment can constitute constructive dismissal. Sophia Stamos suffered on-going and serious sexual harassment by a colleague. The court found the employer constructively dismissed Stamos as the work environment made her continued employment intolerable.
8.
Sulz v. Attorney General, [2006]
The British Columbia Supreme Court awards large damage for prolonged harassment. Former RCMP officer Nancy Sulz brought a case against the RCMP for not taking action when her direct supervisors harassed her for over two years. The harassment led Sulz to take a leave of absence and eventually accept a medical discharge. She won $950,000 in damages, which included compensation for the emotional impact of the abuse as well as future wage loss.
9.
Dupont Inquest [2007] and
Bill 168 [2010]
The murder of female employees brings change to occupational health and safety laws. A colleague and former lover who had been threatening Lori Dupont, a registered nurse at Hotel-Dieu Grace Hospital in Windsor, Ont., killed her in 2005. A coroner’s jury identified 16 risk factors of violence and several missed opportunities of intervention by the employer. This case and the 1996 murder of Theresa Vince by her supervisor were precursors to Bill 168, An Act to Amend the Occupational Health and Safety Act.
10.
Hoyt v. Canadian National Railway [2006] and
Canada (Attorney General) v. Johnstone [2013]
Two courts recognize family status protection includes childcare responsibilities. In both cases, the employers denied the women employees’ request for accommodation in order to take care of their children. Instead, the employers forced the women to accept part-time employment. The courts ruled that the cases constituted discrimination on the basis of family status.
