Sexual Harassment Does Not Require Sexual Intent: A Federal Court of Appeal Reminder and Why It Matters

Is asking colleagues about their daughters’ sexual development harassment or just a loving father wanting to be prepared for his own kids' development?

What about commenting on a coworker’s breasts? Or repeatedly inserting oneself into discussions about girls’ bodies and puberty?

In a recent decision involving the termination of a WestJet employee, the Federal Court of Appeal confirmed that this type of conduct constitutes sexual harassment, even if the person engaging in it claims there was no sexual intent.

The case arose after an adjudicator overturned the employee's termination, finding there was no sexual harassment and therefore no just cause for termination.

The adjudicator reasoned:

None of his comments were sexual in nature or intent, and no one took his comments in a sexual manner whatsoever. He was not soliciting information for a sexual purpose but was instead soliciting information and having discussions relating to the ‘miracle of birth,’ childhood development, puberty and adolescent development. While comments about changes to a girl’s body while developing are unusual, especially coming from a man in a workplace, they were not overtly sexual.

The Federal Court of Appeal set that decision aside.

That reset is significant, not only for this case but for how sexual harassment is understood more broadly, particularly in the federal sphere.

What the Legislation Actually Says and Why That Shapes the Analysis

Part of the confusion in cases like this stems from the statutory language itself.

Under the Canada Labour Code, “harassment and violence” is defined as:

any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee.

Notice the structure.

The definition includes conduct “of a sexual nature,” but it does not expressly refer to sex, gender, sexual orientation, gender identity, or gender expression within the definition itself.

That framing can subtly encourage decision-makers to look for something overtly sexual in content.

The Canadian Human Rights Act provides that harassment on a prohibited ground of discrimination is unlawful, and clarifies that sexual harassment is deemed to be harassment on a prohibited ground. But again, the statute does not expressly spell out that non-sexual, gender-based demeaning conduct falls within that category.

By contrast, Ontario’s legislative framework is more explicit.

The Ontario Human Rights Code guarantees employees freedom from harassment in the workplace “because of sex, sexual orientation, gender identity or gender expression.”

Similarly, the Occupational Health and Safety Act defines workplace sexual harassment to include a course of vexatious comment or conduct because of sex, sexual orientation, gender identity, or gender expression (not just explicit sexual solicitations or advances).

Right there in the statutory language is express acknowledgment that non-sexual, gender-based harassment is a form of sexual harassment.

That clarity does not mean Ontario decision-makers always get it right. They do not. But the wording makes it harder to collapse sexual harassment into “conduct of a sexual nature.”

In the federal sphere, the absence of that explicit language, combined with selective readings of case law, has sometimes led to an overemphasis on sexual intent or overt sexual content.

This Federal Court of Appeal decision is important because it resets that understanding.

Sexual harassment does not require sexual desire. It does not require sexual gratification. And it does not require explicit sexual propositions.

Looking Beneath the Surface: Power, Entitlement, and the Sexualization of Girls

Once we move past the narrow question of sexual intent, we can see more clearly what was happening in this case.

The commentary about colleagues’ daughters, and about the respondent’s own daughter, is not neutral.

It reflects a longstanding social pattern of sexualizing girls’ bodies. Treating female bodies, even children’s bodies, as objects open to observation, commentary, and evaluation.

Framing those discussions as curiosity about puberty or the “miracle of birth” does not remove the underlying dynamic.

What is being asserted in those moments is entitlement.

The entitlement to speak freely about girls’ bodies.
The entitlement to insert oneself into conversations about girls' bodies.
The entitlement to have others listen and tolerate it.

On the other side of that entitlement is a loss of control.

The colleagues, and by extension, their daughters, have no meaningful ability to opt out. That lack of control can trigger a visceral sense of threat or powerlessness, particularly for parents.

This is how power often operates in sexual harassment cases. Not through explicit propositions, but through dominance. Through positioning oneself as the person who defines what is acceptable conversation, while others are required to endure it.

When we understand sexual harassment as an assertion of power rooted in sociocultural hierarchy (of which gender is a primary factor), the irrelevance of sexual intent becomes clearer.

Context and Pattern Matter

The Court also pointed to broader behaviour:

• Inserting himself into conversations among female colleagues
• Referring to one colleague as having a “resting bitch face”
• Using his larger physical size to intimidate colleagues
• Continuing offensive commentary after being asked to stop

Sexual harassment is rarely about one isolated comment. It is about patterns, persistence, and power dynamics.

When someone continues after being told to stop, and then claims innocence, that is not social awkwardness. It is boundary testing.

A proper legal analysis must consider that full context.

Institutional Minimization and a Call to Learn

This is now the second appellate decision in as many years to overturn a respected adjudicator’s reasoning for fundamentally misunderstanding sexual harassment. (The other decision was by the Ontario Court of Appeal in Metrolinx.)

There is a long history of institutional minimization of gendered harm. When decision-makers fail to recognize harassment unless it is overtly sexual, the legal system itself can reinforce that minimization.

That perpetuates harm.

At the same time, there is something important to acknowledge.

If highly respected adjudicators do not always “get” sexual harassment, it should not surprise us that many people in our workplaces and communities are still learning too.

That is not a reason for embarrassment. It is a reason for education.

Sexual harassment can be layered and complex when we unpack the underlying dynamics of gender, power, and social conditioning. That makes it incumbent on lawyers and trainers to explain it in accessible ways.

When people understand what sexual harassment really is, they are far better equipped to recognize it and respond appropriately.

What This Means for Employers

For employers, this decision is a reminder to examine how sexual harassment is defined and understood internally.

• Does your policy focus too narrowly on sexual intent?
• Are managers trained to recognize non-sexual gender-based demeaning conduct?
• Do investigations assess patterns and power dynamics, not just isolated comments?

A narrow lens increases legal risk and workplace harm.

A broader, more accurate understanding allows organizations to intervene earlier and more effectively.

Reviewing Your Workplace Approach

If your organization is reviewing its harassment policies, investigation processes, or training programs, this decision offers an opportunity to recalibrate.

The legal framework in the federal jurisdiction does not require sexual intent. And workplace culture demands a deeper understanding of how gendered power operates.

If you would like support reviewing your workplace harassment framework or strengthening your organization’s approach to prevention and response, you’re welcome to reach out through the contact form. I would be pleased to discuss how I can assist.

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