Labor Arbitrations and Coworker Sexual Harassment: Looking at the Assessment of Mitigating Factors through a Feminist Lens
Sue Hart
DOI: 10.2190/WR.15.1.f
Abstract
Canadian labor arbitrations resolving disputes over employer discipline for alleged coworker sexual harassment were analyzed in order to explore how well women's right to a harassment-free workplace was protected in the arbitral assessment of the mitigating factors argued during hearings to support the male harasser. An analysis of the awards revealed a significant difference between reasoning that applied traditional, conventional, arbitral principles and reasoning acknowledging that the nature of sexual harassment, its seriousness, and its impact on the complainants and their female coworkers merited a creative, more independent line of reasoning. Examining arbitrations using a feminist lens, one that emphasized gendered power relationships in the workplace, enabled new insights indicating the gendering of some traditional arbitral jurisprudence and principles and some possibilities for legal reform.
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