Can an employer be held liable for discriminatory or harassing acts of its employees?
Employers are liable for the discriminatory and harassing practices and/or actions of their employees. This is because they are responsible for providing a service or an environment that is free of discrimination and harassment. If an employer fails to ensure a workplace free of discrimination and harassment, the employer is liable.[1]
Liability in human rights legislation
Provincial and Federal human rights legislation focus on “the effects of discrimination rather than its causes.”[2] The purpose is not to punish the discriminator but to remedy the harm. It is therefore important that the entity which has the ability to address and eliminate discriminatory conduct be held liable.[3]
The Supreme Court of Canada concluded in Robichaud v. Canada (Treasury Board) that human rights legislation “contemplates the imposition of liability on employers for all acts of their employees.”[4] The Court concluded that human rights legislation contemplates statutory liability of employers. The Court stated the following:
17. Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees “in the course of employment,” interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions... [5]
In Robichaud, the Court adopted the following meaning of “in the course of employment:”[6]
It would appear more sensible and more consonant with the purpose of the Act to interpret the phrase “in the course of employment” as meaning work‑ or job‑related, especially when that phrase is prefaced by the words “directly or indirectly.”
While employer liability is purely statutory, it serves a similar purpose to vicarious liability.[7] Only an employer is able to “remedy undesirable effects” of discrimination[8] because they “can provide the most important remedy—a healthy work environment…”[9]
In circumstances where the employer is unaware of discrimination or harassment, they are still liable for the actions of their employees because they are the only ones that have the ability to create a workplace that is free of harassment and discrimination. [10]
Employer and employee liability for the same discriminatory act
Both an employer and an employee can be named as respondents in a human rights complaint. In Dudnik v. York Condominium Corp. No. 216 [No. 1], [11] the Human Rights Tribunal of Ontario concluded that both the employer and an employee could be named as a respondent in a human rights complaint. The Human Rights Tribunal of Ontario (“HRTO”) in Dudnik stated:
A complaint can, of course, be made against any offending person, including a corporate entity…..Thus, corporate entities can, of course, certainly be respondent parties. However, if they are, the Complaint can still name as individual Respondents directors and officers who caused the corporate entity to do the action that is alleged to offend the Code. [12]
….
The Code is directed against unlawful discrimination by any and all persons (including individuals and artificial entities created by juristic construct) who cause that discrimination…. the legislative purpose of the Code is to eradicate unlawful discrimination and the infringement of basic human rights, and to effectuate this objective the Code allows a Complaint to name as a Respondent any person who has caused such infringement of rights. [13]
Outside of the traditional workplace setting
Employer liability has been extended to situations where discrimination has occurred outside of the traditional workplace setting when the incident is considered to be employment-related. Simpson v. Consumers’ Association of Canada [14] was a matter, which, although not a human rights case, involved behaviour by the supervisor that was found to be of a sexually harassing nature. In that case, the Court of Appeal found that even though some of the impugned conduct occurred on business trips thus taking it outside the workplace and the normal employment context, nonetheless it was still found to be employment-related.
As stated above, the Supreme Court in Robichaud defined "in the course of employment." The Court determined that for an employer to be liable, the discriminatory action had to be "in some way related or associated with the employment." This means that the context must be job related, whether "directly or indirectly." [15]
Remedial implications for employer liability
The conduct of the employer may have important practical implications. In Robichaud, the Court stated:
19. I should perhaps add that while the conduct of an employer is theoretically irrelevant to the imposition of liability in a case like this, it may nonetheless have important practical implications for the employer. Its conduct may preclude or render redundant many of the contemplated remedies. For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability.[16]
Taking steps to properly understand the law and resolve complaints in a timely manner with an experienced and competent investigator or mediator is critical to reduce damages for an employer, and to ensure the employer is acting within the parameters of the law. See our blog on Hiring an External Investigator to learn more.
Contact LJHRC if you require guidance and assistance with your human rights and/or harassment matters, including consultation, investigation, mediation, educational workshops, training, policy development and implementation, before these matters are brought forward to the Human Rights Tribunal of Ontario or another adjudicator, where your business could be exposed to monetary damages and reputational harm.
REFERENCES
[1] Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84, at 34 [“Robichaud”].
[2] Ibid, at 15.
[3] O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536, at 12 [“O’Malley”].
[4] Robichaud, supra note 1, at 17. The Robichaud case involved sexual harassment in the Crown context under the Canadian Human Rights legislation.
[5] Ibid, at 17.
[6] Ibid, at 12.
[7] Ibid, at 15.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Dudnik v. York Condominium Corp. No. 216 (1988) 9 C.H.R.R. D/5080 (Ont. Bd. Inq.) [“Dudnik”]
[12] Ibid.
[13] Ibid.
[14] (2001), 53 O.R. (3d) 351 (Ont. C.A.)
[15] Robichaud, supra note 1, at 12 & 17.
[16] Ibid, at 19