In honour of International Women’s Day, we asked the lawyers at our firm to identify which 10 employment law cases were the most influential in terms of advancing the cause of women’s equality in the workplace. Here is what we came up with as a group, listed chronologically:
1. The Supreme Court of Canada recognizes sexual harassment as sex discrimination
Dianna Janzen was employed as a waitress at Pharo restaurant where she was subjected to ongoing sexual harassment at the hands of a fellow employee. When Ms. Janzen complained to Pharo’s manager about the harassment, the manager did not intervene and instead fired Ms. Janzen. Ms. Janzen sued Mr. Grammas and Platy Enterprises Ltd., the owners of Pharo restaurant, alleging that her harassment and dismissal constituted discrimination on the basis of sex. Ms. Janzen’s argument was accepted by the Supreme Court of Canada, which unanimously held that sexual harassment, which is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences, is a form of sex discrimination.
2. The Supreme Court of Canada declares that pregnancy discrimination is sex discrimination
Brooks v. Canada Safeway Ltd.,  1 S.C.R. 1219
Susan Brooks alleged that her employer’s benefits plan, which excluded pregnant women from protection, discriminated against pregnant employees. The Supreme Court of Canada held that pregnancy discrimination constituted discrimination on the basis of sex and that Ms. Brooks had indeed been subjected to
discrimination. This landmark decision made it impossible for employers to successfully argue that discrimination against pregnant employees was not discrimination under human rights legislation.
3. The Ontario Court of Appeal sends two clear messages that sexual harassment is just cause for dismissal
In both cases, the employees sued their employers for wrongful dismissal. Their employers argued that the employees were dismissed for cause as a result of sexually harassing a number of their female co-workers. The Court of Appeal in both instances found that the employers had just cause to terminate the employees. The Court of Appeal also took the opportunity to quash the belief that silence would denote acceptance of sexual harassment, stating 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.” The Court of Appeal held that an employer has a duty to all employees to end the workplace abuse or harassment and to alleviate its impact on the employment environment.
4. The Ontario Court of Appeal broadens the definition of sexual harassment
Simpson v. Consumers’ Association of Canada, 1999 CanLII 14880 (ON CA)
David Simpson, an Executive Director with Consumers’ Association of Canada, was dismissed for just cause from his position for sexually harassing female employees, often outside of the office, during workplace social events. The Court of Appeal concluded that afterhours and social interactions between a supervisor, like Mr. Simpson, and other employees constituted the workplace for the purpose of applying the law regarding employment-related sexual harassment.
5. Supreme Court of Canada requires employers to justify discriminatory job requirements
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union,  3 S.C.R. 3
Tawney Meiorin, a female forest firefighter, who was dismissed from her job when she failed the aerobic component of the minimum fitness standard, complained that the standard discriminated against women, as women generally have lower aerobic capacity than their male counterparts. The Government of British Columbia justified Ms. Meiorin’s dismissal, arguing that the standard was a bona fide occupational requirement (BFOR). In siding with Ms. Meiorin, the Supreme Court of Canada established that before an employer can rely on the BFOR defence, it must show that its alleged discriminatory policy or standard is: rationally connected to the job performance; adopted honestly and in good faith; and necessary in order to fulfill a legitimate work-related purpose. The employer also needs to prove that its policy or standard is the least discriminatory way to achieve the workrelated purpose and that it has attempted to accommodate individuals who may not meet the requirement to the point of undue hardship.
6. Class actions as method for combatting systemic discrimination against women employees
Class actions have been used to assist female employees to obtain pay equity in the workplace. In 2002, Bell Canada settled a salary adjustment dispute with thousands of its female employees, who claimed that they were owed raises of as much as 20 percent going back to 1992. The settlement cost Bell Canada $178 million. Similarly, in 2011, the Supreme Court of Canada found that Canada Post had denied female employees equal pay from 1983 until 2002. Canada Post was ordered to compensate over 2,300 female employees it had discriminated against between 1983 and 2002. Class actions have remained a popular legal recourse for women facing alleged systemic discrimination. In 2012 alone, class actions were launched by women on maternity leave seeking Employment Insurance sickness benefits and RCMP officers combating gender-based discrimination in the male-dominated force.
7. Harassment can constitute constructive dismissal
Stamos v. Annuity Research & Marketing Service Ltd., 2002 CanLII 49618 (ON SC)
Sophia Stamos was subjected to ongoing and serious abuse at the hands of a new employee in the workplace, the owner’s uncle. The Court found that the employer constructively dismissed Ms. Stamos as her co-worker’s sexist, bigoted language, threats and overall unreasonable treatment made performing her work impossible and continued employment intolerable.
8. Prolonged harassment leads to large damage award against employer
Sulz v. Attorney General et al, 2006 BCSC 99
Nancy Sulz, a former officer, brought an action against the RCMP, claiming that her immediate supervisors harassed her for over two years. The harassment included comments about her pregnancy and allegations that she was under the influence of drugs. The mistreatment culminated with Ms. Sulz taking a leave of absence in 1996 and eventually accepting a medical discharge in 2000. The British Columbia Supreme Court found the supervisors’ comments and the RCMP’s silence on the harassment objectionable. The Court awarded Ms. Sulz $950,000 in damages, a bulk of which compensated her for the emotional impact of the abuse and her future wage loss.
9. Murder of female employees prompts changes to occupational health and safety regime in Canada
In Ontario, two incidents became the impetus for Bill 168, An Act to Amend the Occupational Health and Safety Act, which created numerous obligations for employers to ensure the safety of employees, particularly where violence and harassment are at play. In 1996, Theresa Vince was murdered by her supervisor, after years of sexual harassment. Ms. Vince had complained to management at Sears Chatham for more than a year about her supervisor’s terrifying sexual harassment. In 1997, the Coroner’s Jury encouraged changes to the Occupational Health and Safety Act but these recommendations did not materialize into legal reform. Nearly a decade later, on November 12, 2005, Lori Dupont, a registered nurse at Hotel-Dieu Grace Hospital was murdered at the hospital by a colleague and former lover, who had long threatened her with violence. The Coroner’s Jury recommendations identified no less than 16 risk factors of violence and numerous missed opportunities for intervention by Ms. Dupont’s employer. In light of these tragedies and the Coroner Jury recommendations, Bill 168 was introduced to disallow employers from being passive against workplace violence or harassment and required them to take action against threats.
10. Family status protection includes childcare responsibilities
In both cases, the female employees sought accommodation from their employers to attend to their childcare responsibilities. In both cases, the employers refused the employees’ requests and forced the employees to either accept part time work or an unpaid leave to care for their children. The human rights tribunal in Hoyt and the Federal Court in Johnstone found that the employees had been discriminated against on the basis of family status when they were denied full time employment status. The employers failed to show that they would have suffered undue hardship by adjusting the female employees’ work schedules.