On October 8, 2016, video surfaced of U.S. presidential candidate Donald Trump making sexually vulgar and demeaning comments about a particular woman and about women in general in a 2005 conversation with Billy Bush, then of Access Hollywood: see The Washington Post article. The comments included bragging about sexual harassment and sexual assault. In what some describe as an “apology”, Trump said that his comments were not unlike those of Bill Clinton, it was “locker room banter” and he apologizes if “anyone was offended.”
If Trump and Bush were employed by a Canadian employer, and the conversation took place at work or at a work-related event, would the employer have just cause to terminate Trump’s employment in a unionized workplace?
What if Complainant Wasn’t Present?
In a 2016 case, discussed below, a female employee was not present during the sexualized conduct of a male co-worker. The arbitrator in that case found that this did not change the nature of the conduct – it was still harassment of a sexual nature. The arbitrator found that it was entirely foreseeable that the female employee would learn about the inappropriate conduct.
What Factors Would an Arbitrator Consider?
In determining the presence of just cause for discharge, a Canadian labour arbitrator would ask whether Trump has demonstrated that:
- he appreciates the seriousness of his comments and the harm that they have caused,
- there is a reasonable prospect of restoring a safe and healthy work environment if he is reinstated,
- he apologized and his apology was genuine,
- he has the capacity to learn from his mistakes, and
- he has taken steps to improve himself.
Sexual Harassment & Sexual Assault Prima Facie Cause for Discharge
In 2001, an experienced and respected Canadian labour arbitrator said that termination is prima facie the appropriate penalty for sexual harassment or sexual assault in the workplace:
“Sexual harassment or assault is intolerable. It is one of the most frightening and damaging things that one person can do to another. The effects of sexual harassment or sexual assault on the victim can be extreme and long lasting and incidents of this misconduct can disrupt the workplace. I am satisfied that sexual harassment falls within the same category of serious misconduct as theft and that discharge is prima facie the appropriate penalty even in the case of a first offence. This does not mean that discharge will necessarily be appropriate in every case, but the onus is on the Union and the grievor to demonstrate that it is appropriate to mitigate the penalty in a particular case.”
Trillium Health Centre v. C.U.P.E., Local 4191 (2001), 102 LAC (4th) 48 (Surdykowski)
Can a Safe, Harassment-Free Workplace be Restored?
In 2002, another Canadian labour arbitrator emphasized that a long and clear employment record will not save an employee where there is no reasonable prospect of restoring a safe and healthy work environment:
“Overall, I understand the authorities to hold that discharge for harassment should be upheld where the conduct is serious and there is no reasonable prospect of restoring a safe and healthy work environment involving the grievor. Often it is said that the grievor “doesn’t get it”. In such instances, even a long and clear service record will not save the grievor: see Trillium Health Centre (23 years seniority) and McMaster University (12 years service). On the other hand, where the offending conduct is more moderated and the grievor is a good candidate for reform, a suspension may be substituted, even without long and clear service: see Canada Cement(unrelated 4-week prior suspension, 2 years service, single act of attempt to spy on women’s shower) and Western Grocers (no record, 4 month course of lewd conduct, 6 years service). Fundamentally, as in every discharge case, the question is whether the employment relationship has been irreparably ruptured.”
M.G.E.U. v. Manitoba Lotteries Corp. (2002), 114 L.A.C. (4th) 193 (Peltz)
Genuine Remorse and Potential for Rehabilitation
In determining whether a safe and harassment-free workplace can be restored if the offending employee is returned to the workplace, arbitrators look very carefully at whether the employee has demonstrated genuine remorse and the potential for rehabilitation.
In the 2001 Trillium case, a male employee repeatedly made unwelcome sexual comments and advances towards a female co-worker, as well as sexually touched her without her consent. The male employee had more than 23 years of seniority and a clean employment record, but refused to acknolwedge or apologize for his misconduct. The arbitrator upheld his discharge.
In the 2002 Manitoba Lotteries case, the employee had made repeated comments and insults about a female employee’s personal appearance, participated in writing a sexually charged poem about her, and slapped her on the buttocks. The arbitrator reinstated the male employee and substitued a lengthy unpaid suspension, having found that he “apologized in a manner which I have found to be genuine,” and having found “in the grievor a capacity to learn from his mistakes and a willingness to try.”
In a 2016 case, Innophos Canada Inc. v. USW, Local 6304 (2016), 127 C.L.A.S. (112) (Gray), the arbitrator upheld the discharge of a male employee who, at an employer-sponsored social event, went to the parking lot, took off his clothes, climbed onto the car of the employer’s IT and Finance Manager and posed naked for pictures taken by another employee. He then told other employees what he had done. He had also earlier walked up behind the Manager, placed his hands on her hips and when she broke free, slapped her on the buttocks. The employee was 53 years old, had 22 years of service, and no disciplinary record. The arbitrator was not convinced that the employee was truly remorseful or appreciated the consequences of his actions, and was therefore not convinced that he could safely be returned to the workplace. The arbitrator found that the employee had done nothing between his termination and the hearing to improve himself, and had failed to acknolwedge or express remorse for the hurt he had caused, even after hearing the Manager’s testimony.
“You’re Fired”
Based on the above cases, a Canadian arbitrator would be hard-pressed to reinstate Trump, particularly in light of subsequent comments he has made about women, including his suggestion that a woman he is alleged to have sexually assaulted is not attractive enough to have warranted his attention: http://www.huffingtonpost.com/entry/donald-trump-sexual-assault_us_57ffc493e4b0162c043aa2a3.
For more information about preventing and dealing with sexual harassment in the workplace, contact Gail Gatchalian.