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Employers' responsibility for acts of sexual harassment by employees

Employers' responsibility for acts of sexual harassment by employees

By Yosie Saint-Cyr, LL.B., Managing Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, February 2010

The latest HRinfodesk poll explored readers' knowledge on employers' responsibility for acts of sexual harassment made by employees. The poll asked: an employer will not be liable for sexual harassment committed by managers or supervisors as long as it is not aware of the conduct: true or false? Out of 312 respondents, 90.6 percent (281) of respondents answered false and were right, while a small number of respondents, 9.94 percent (31), answered true and were wrong. But why do employers have to deal with the legal liability for sexual improprieties in the workplace? Because human rights legislation (among other laws) holds employers legally responsible for failing to properly address workplace sexual harassment.

The law

Human rights legislation across Canada establishes an employee's right to employment free of sexual harassment and requires employers to take positive action to prevent sexual harassment in the workplace. In addition, in federally regulated workplaces, Division XV.1 of Part III of the Canada Labour Code establishes that same right. Furthermore, in Manitoba, Saskatchewan and Ontario (starting June 15, 2010), Occupational Health and Safety legislation also covers the prevention of sexual harassment in the workplace under OHS workplace harassment.

The Criminal Code also protects people from physical or sexual assault.

Under human rights laws, discrimination based on sex includes what is commonly referred to as sexual harassment or inappropriate comments and actions of a sexual nature.

How sexual harassment is defined in each jurisdiction's legislation may vary; however, the Supreme Court of Canada defines sexual harassment as an “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of the harassment.”

This means any conduct, comment, gesture or contact of a sexual nature that is likely to cause offence or humiliation to any employee; or that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion. The Ontario Human Rights Commission has even elaborated in its policy that sexual harassment does not have to be sexual in nature. It can also mean that someone is bothering you simply because you are a man or a woman. Making stereotypes about one gender or the other can be a form of sexual harassment. Sexual harassment happens most often to women, but it can also happen to men or between members of the same sex. Other jurisdictions would likely also find this expanded description acceptable.

A common clause defining sexual harassment is: “comments or conduct that is known or ought reasonably known to be unwelcome”. This means that interpreting sexual harassment involves subjective and objective tests, based on the harasser's perspective and that of a “reasonable third party”. First, the harasser's own knowledge of how his or her behaviour is being received is part of the test. The second test is from the point of view of a reasonable third party, i.e., how the behaviour might generally be received or perceived. Using these tests, the commission, the board of inquiry or an inspector can conclude, on the basis of the evidence before it, that an individual knew, or should have known that his or her actions were unwelcome.

But why would the employer be responsible for the actions of his or her employees?

Legislation and common law establish that a corporation is liable for the actions of an officer, official, employee or agent of the corporation, when such actions are done in the course of their employment. This is often referred to as vicarious liability.

As stated by the Supreme Court of Canada, ultimately, employers are responsible for acts of work-related harassment. Employers control the organization, and are therefore the only ones who can actually reverse the negative effects of harassment and ensure a healthy work environment. So no matter what kind of workplace you own or business you operate, you have a responsibility to make sure your employees do not experience harassment. If harassment does occur, you must show that you did everything you could to eliminate or prevent it, or to minimize its effects.

Employers are also responsible when employees harass non-employees, such as potential employees, clients and customers. Employers must also take action to address the situation if employees are harassed by non-employees such as clients, customers, couriers, etc.

Employers can be held legally responsible for harassment in their workplaces. Courts may impose penalties on the employer and the manager, even if neither of them was involved in the harassment. An organization that does nothing to prevent harassment, therefore, may well find itself facing serious financial and legal consequences.

The Supreme Court also pointed out that although employers will be liable for harassment, whether they know of it or not, the penalties imposed will be less, or non-existent for an employer that “responds quickly and effectively to a complaint … to remedy and prevent recurrence.” (Robichaud v. Treasury Board (Department of National Defence), 1987.)

What are the employer's responsibilities for the prevention of sexual harassment?

Employers are required to take every reasonable step possible to ensure that no employee is subjected to sexual harassment in any of their workplaces, and at corporate or social events or other work-related events off-site. To meet their obligations under the law, every employer, after consulting with employees or their representatives including joint health and safety committee, must issue a policy on sexual harassment. The policy must contain at least the following items:

  1. A definition of sexual harassment that is substantially the same as found in applicable legislation such as: human rights, the Canada Labour Code (if applicable), occupational health and safety (if applicable)
     
  2. A statement to the effect that every employee is entitled to employment free of sexual harassment
     
  3. A statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment
     
  4. A statement to the effect that the employer will take disciplinary measures against any person under its direction who subjects any employee to sexual harassment
     
  5. A statement explaining how complaints of sexual harassment may be brought to the attention of the employer
     
  6. A statement to the effect that the employer will not disclose the name of the complainant or the circumstances related to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation to the complaint or required by law
     
  7. A statement informing employees of their right to make a complaint under human rights legislation and occupational health and safety legislation (if applicable)

Be aware that if this type of harassment (as well as others) is not dealt with on a timely basis, or if the victim remains silent, events could escalate into violence. It is important that your employees understand you have a process in place to deal with the issue and that they can use that process easily and without fear or hesitation.

Guidelines

Here are some other guidelines and considerations on how to manage sexual harassment and policy:

  • Have a written code of conduct, which outlines the types of behaviours your organization deems unacceptable
     
  • Provide definitions of “sexual harassment” and “hostile work environment”; use easy to understand terms and language
     
  • List examples of prohibited behaviour, but state that the list is not comprehensive
     
  • Explain and train your employees in your complaint reporting process and procedures
     
  • Specify to whom the employee must refer to file a complaint
     
  • Explain to your employees and train them on your investigation process and procedures; lay out the steps that should take place once a complaint is received, such as documenting the complaint, interviewing the complaining employee, alleged harasser, witnesses, time frame, etc.
     
  • Decide if the accused employee should remain at work or be suspended during the investigation
     
  • Include a section on confidentiality and privacy issues; explain that the identity of the accused, the accuser and any witnesses involved will be kept confidential and will be revealed on a need-to-know basis
     
  • Assure employees that there will be no punishment for filing a complaint or acting as a witness
     
  • Provide for disciplinary measures up to termination for employees who violate the policy, file a false complaint or complain in bad faith
     
  • Make sure all employees are made aware of the policy at all times and are trained on the ins and out of the policy; publish and communicate the policy
     
  • Have new and current employees sign and acknowledge that they have been informed and understand the policy as it is written
     
  • The person accountable for sexual harassment complaints, as well as supervisors and management must respond to a harassment complaint immediately and effectively in order to enforce the policy
     
  • Training and education on the issue must be provided to employees, supervisors and management; education must include how to identify, handle and resolve situations of harassment
     
  • Include in procedures employer recourses such as outside involvement from the police and criminal charges
     
  • Provide victim assistance, accommodation and employee assistance program (if available and appropriate)
     
  • Indicate what the employee's recourses are, if any
     
  • Outline how the harassed employee, the accused employee and all other witnesses should be approached, and interviews conducted and documented
     
  • Be consistent in enforcing company policy; never overlook infractions
     
  • Monitor the workplace by having managers/supervisors consistently assess the workplace to ensure it conforms to the company's code of conduct
     
  • Indicate to employees that conduct outside of the workplace may still be considered employment-related provided there is a connection between the activity and the workplace, such as any company-sponsored event
     
  • Indicate to employees that even where sexual conduct between employees may be described as consensual, such conducts nevertheless will be considered inappropriate where an individual is a supervisor or manager and the other a subordinate; advise employees that a supervisor or manager is held to a higher standard of conduct than an employee because of the imbalance of power in the employment relationship, and the perceived consequences of objecting to a manager or supervisor's sexual advances or unwelcome conduct



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