In this paper we conduct a comparative and contrast research on the topic of Employer’s Liability for Sexual Harassment at Workplace. Sexual harassment is a discrimination which is based on sex. When a person is harassed sexually at his workplace, then this would be consider an attack on the personal dignity of the person. Such harassment not only affects the dignity of the person but also affects the effectiveness of their working, and restricts their earning potential. Practices related to sexual harassment not only affects the victim only but it also affects other employees of the company, and disturbs the environment at workplace. Sexual harassment at workplace can be defined as any unwanted behavior which is sexual in nature, and such behavior occurs at the workplace (OHRC, n.d.).
Usually, victims of sexual harassment at workplace are women. It must be noted that they are not the only victims. Men can also be the victim of sexual harassment at workplace, but chances of harassment of men are less. Sexual harassment at workplace is experienced by almost 90% Canadian women’s, and they admit that they faced such incident once in their lives. In case of men almost 90% men’s admit that they witnessed such incident during their working lives.
This paper contains the discussion related to liability of employer for those actions of its employees which are outside the scope of employment. We consider and evaluate the divergent point of view on the abovementioned topic. In last we conclude the essay by presenting our view on different concepts of this topic.
Sexual harassment at workplace:
Before discussing the employer’s liability it is necessary that we understand the meaning and concept of sexual harassment. Sexual harassment at workplace is the big problem for the Canadian workforce and victim feel afraid and powerless because of which they did not file complaint against such acts. Supreme Court of Canada defines the meaning of sexual harassment at workplace in such manner that any conduct which is sexual in nature and not welcomed by the victim is considered as sexual harassment. Such conduct not only affects the personal and human dignity of the victim but also affect the work environment at work place. Such behavior results in consequences related to earnings and job of the victim. Sexual harassment is another form of sex discrimination (Canadian Labor Relations, n.d.). In Canada sexual harassment is divided in two types that are:
- Quid Pro Quo sexual harassment: Quid Pro Quo is Latin version of “this for that”. In the context of workplace it means “a favor for a favor”. We can understand this with the help of the example, if any supervisor or any other senior authority offers promotion in work to its subordinate or junior employee, if such employee or junior submit his/her employee unwelcome employee behavior.
- Hostile work environment sexual harassment: this type of sexual harassment is very common at workplace. It includes series of incidents which involves hostility and unwelcome sexual behavior. However we can say that a single incident is sufficient to create environment which is hostile at workplace. For example unwanted verbal, gestures that are sexual in nature (Canadian Labor Relations, n.d.).
Canadians has right to file both criminal case against the assailant and can claim for compensation from their employer or from assailant employer in case of sexual harassment at workplace. Employers are financially liable if there is any incident of sexual assault happens at their workplace. This liability of compensation occurred on employer under constructive dismissal labor law claims. In Canada people are aware that they can claim for financial compensation against their employer in case of leaving their job early because of sexual assault, but they are not aware that they can also file civil claim against their employer as well. Victim can file civil claim in case when employer is found vicariously liable for the sexual assault committed by his employee (Sex assault.Ca, n.d.).
Vicarious liability means, it is the liability of the employer that he pay compensation in financial terms to the victim. Such liability on employer is important, because in many cases assailant does not have enough financial resources so that he pays to the victim or judgment. Vicarious liability of employer based on the circumstances of the case, and such factors include:
- Policies framed by employer related to safety and sexual assault.
- Awareness of employer in the matters related to sexual assault.
- Circumstances in which assailant establish contact with the victim
- Exact place where incident of sexual harassment occurred.
It is the general rule that employer is liable for the acts done by its employees, and in case of sexual harassment also employer is financially liable for the act of employee whether or not this offence is committed with the person who is fellow employee. In case when victim is fellow employee, then in such case employer is liable to pay both law suit related damages and constructive dismissal termination benefits. In case, when assailant is working under the employer or if any connection is found between the job, victim and sexual assault then victim is cannot seek constructive dismissal termination benefits from the employer of assailant, but victim can seek law suit related damages from the employer of assailant (Viviers, 2016, Christiansen, n.d.).
Canada Labour Code states that every employee in Canada has right to work in the environment which is free from sexual harassment. We have already mentioned above that employer is liable for the acts of its employees, and it is clear that it is the duty of the employer that he takes reasonable steps to prevent sexual harassment at workplace. It is necessary that every employer must make some policies after consulting with its employees to deal with the matters of sexual harassment (Government of Canada, n.d.).
Law related to sexual harassment in Canada:
Canada Labour Code states the rights of the employees to work in environment which is free from sexual harassment, and requires that employer has to take actions to prevent such matters.
Canada Labour Code defines the sexual harassment, and according to this Code any conduct, comment, gesture or contact which is sexual in nature cause or likely to cause any humiliation or offence that can be understand on reasonable grounds that person puts condition of a sexual nature on employment, training or promotion. It is necessary that employers introduce the policy related to sexual harassment at workplace (Government of Canada, n.d.).
Canada Labour Code state that every employee has right to work in environment which is free from sexual harassment.
Canada Labour Code defines that employer must take reasonable steps to ensure that no employee is subject to sexual harassment.
Canada Labour Code defines that employer must make some policy to prevent the activities of sexual harassment, and clause 2 of this section defines the contents of the policy which was specified in clause (1) of this section. Following are the contents of policies that employer has made to prevent the sexual harassment at workplace:
- Policy page must contain the definition of sexual harassment which is specified in the code.
- Policy paper must contain the statement that every employee has right to work in the environment which is free from sexual harassment.
- Policy paper contain that employer will take all reasonable efforts to ensure that every employee must work in sexual harassment free environment.
- Statement that in matter of sexual harassment employer will take reasonable actions against the assailant.
- Statement which state the procedure to file the complaint against the sexual harassment to the employer.
- Policy paper contain the statement that employer maintain the confidentiality in this matter, and does not disclose the name of the person who lodge complain against the sexual harassment. It must be noted that employer can disclose the information and name of the person when such disclosure is necessary for the purpose of investigation.
- Policy paper contains the statement which states the rights of the employees to file complaint under the Canadian Human Rights Act
Clause (3) of this section states that it is the duty of the employer that each person in the organization must aware about the policy specified in clause (1) of this section (Canada Labour Code, n.d.).
Any person who has recognized by the Federal Law in Canada as an employer must develop a policy that deals with the sexual harassment and employer develop that policy after consulting its employees or with any union which was representing the employees of the company. Courts in Canada impose the liability on employer for the sexual harassment conducted by its employee with fellow employees, customer, client or any other person if such harassment is conducted at the workplace or that incident has any connection with the job of the employee.
The Canadian Human Rights Commission summarizes the standard established by court in Canada for the cases related to sexual harassment at workplace. Following is the summary of standard established by Canadian court:
Employers are liable for the acts of its employees related to harassment at workplace. Supreme Court of the Canada stated that it is the aim of the human rights law to identify the discrimination, and then eliminate that discrimination. Court further stated that employers are the persons who have the control of the organization, and they are the only people who can reverse the negative impacts of sexual harassment and ensure healthy environment to work for its employees. Therefore, that does not matter what kind of business or workplace it was, employer is responsible to make sure that any employee does not face the problems related to sexual harassment. If harassment occurs then it is the duty of employer to show that he takes all reasonable steps to prevent the harassment (UN Women, n.d.).
Parliament of Canada introduced the Canadian Human Rights Act to fight against the discrimination. The intention of parliament behind this was to provide equal treatment and opportunity to everyone in Canada. The main aim of this act was to promote equality in Canada. This commission receives many complaints, and these complaints are settled through meditation or resolved through the process of dispute resolution. In some cases these complaints are referred to Canadian Human Rights Tribunal for adjudication (Canadian Human Rights Commission, 2012).
Section 7(1) and (2) of the Ontario Human Rights Code (OHRC) defines the rights of the person to free from harassment related to sex and any other comment which was related to gender at workplace or housing. Section 7(1) states that any person who occupy an accommodation has right to enjoy his accommodation free from harassment related to sex, sexual orientation, gender identity or gender expression by the landlord, agent or any other occupier lives in the same accommodation.
Section 7(2) states that any person who is employee of any organization has right to work at place that is free from harassment related to sex, sexual orientation, gender identity or gender expression by the employer, agent or any other employee.
Section 7(3) prohibits sexual solicitation by a person who is in a position that he can confer benefit. Section states that every person has right to free from the sexual solicitation by the person who is in a position to confer, grant or deny a benefit to the person if such person making the solicitation knows that it is unwelcome by other person (OHRC, n.d., OHRC, n.d.).
Different views regarding this issue:
An above stated facts shows that employers are liable for the actions of their employees that are out of the employment contract such as sexual harassment at work place. Peoples have different views regarding the employer’s liability for the acts of their employees, and whether employer is liable or not for the acts of employees is depend on the circumstances and facts of the case.
There are different views regarding this issue which has their own logic, and own facts. In some cases it is justified that employers has vicarious liability for the acts of its employees, but in some cases it seems unjustified to held the employer liable for the acts of its employees which are done out of the employment. In this paper we discuss the question and views whether employer should be held liable or not for the acts of its employees?
Prevention is the most effective strategy to stop sexual harassment. It is not possible that harassment reduced by its own, therefore law impose responsibility to prevent sexual harassment on the employer. In Canada employers are responsible to provide healthy work environment to its employees which is free from sexual harassment or does not discriminate between any employees. Law also levy burden on employer to take steps to prevent sexual harassment at workplace. In case if employer does not take reasonable steps to prevent the harassment at workplace then he is liable for the sexual harassment that has occurred at workplace, even if he does not know about the sexual harassment (HRliabrary, n.d.). It is already stated above that vicarious liability is imposed on employer for the acts of employees, but it is necessary to understand that up to what extent employer should be held liable, and standard of liability.
First, it is necessary to state that who can be held liable for the sexual harassment at work place assailant, employer or both. Liability for sexual harassment is attached directly to the assailant or vicariously to the employer. It might be possible that court does not impose any liability on employer for the acts of the employees.
Second, in case if court held the employer liable for the act of its employees, then up to what extent standards of vicarious liability applied on employer. Usually, employer of the company held liable for the acts of the employees automatically whenever the sexual harassment occurs. There are possibilities that employer is held liable only when he does not take reasonable steps to prevent the sexual harassment at workplace.
Third, court must specify if employer is held liable then how liability would occur on employer, and how it would be apportioned between assailant and employer such as it might be levied jointly on both or severally (Smith, n.d.).
As OHRC in Canada, has specified that employers are directly responsible to keep their workplace free from discrimination and harassment. It is the duty of the employer that he provides workplace where human rights are respected and employees treated equally and get equal opportunities. Employers violate the provisions of this code when they directly or indirectly violate this code, intentionally or unintentionally violate this code, constructively discriminate, and directly did not infringe the code but ratify such behavior or action which violates the code.
When any employee infringe this code in the course of his employment, then in such case employer will be held liable for the acts of its employee. Section 46.3 of the code applied in case of discrimination, not in the case of harassment. Under the provisions of vicarious liability employer is liable for the acts of its employees even he did not know about such act (OHRC, n.d.).
In Canada, employer is held liable for the acts of its employees even in case when they are unaware about the act of its employee. Another view related to this legal issue is whether it is right or not to held employer liable for the acts of employees, if employer takes all the reasonable steps to prevent sexual harassment at workplace, and also he is unaware about the act of employee (Berta, 2003).
Before going further in this discussion it is important to know in which situations employer is held liable, in following circumstances court held employer liable:
- When employer does not frame or enforce policy related to workplace harassment.
- When employer does not conduct any training or education program me related to identification and elimination of harassment at workplace.
- When employer does not handle or investigate the complaints properly.
- When employer willfully ignore the acts of harassment at workplace (BH, n.d.).
It must be noted that employer should not be held liable in case he proves that he take reasonable care and steps to prevent sexual harassment at workplace, and he proves that he take such steps to prevent sexual harassment.
We can understand this with the help of the case law Robichaud v. Canada (Treasury Board). in this case supreme court of Canada held that employer is liable for the acts of its employees in course of their employment. The appeal was filed by Bonnie Robichaud and by the Canadian Human Rights Commission against the decision of the Federal Court of Appeal. Federal Court of Appeal held that Mrs. Bonnie Robichaud was sexually harassed by her supervisor, and employed by the Department of National Defence. In this case Department of National Defence is not liable for the contravention of her rights.
Court further held that aim of human rights legislation is to eliminate discrimination. The legislation does not focus on finding the faults, but focus on providing remedies. The Canadian human right act is misunderstood and wrongly interpretate by some people that employers are not liable for the acts of harassment by its employees. This act considered the effects of discrimination and not the causes of the discrimination, and act recognized many remedies which employer can provide to the victim. Only employer can give environment at workplace which is free from harassment, compensation for the loss of wages, and Reinstatement of an employee. This liability on employer also serves the purpose of statutory liability, and these remedies also impose responsibility on the organization that has control and is in the position to take effective remedial action.
In the judgment of this case, The Honourable Mr. Justice Le Dain finds section 7 of this act impose liability on the employer of the organization for the acts done by its employees because this section impose restriction on the discriminatory acts that are conducted directly or indirectly. Employer is liable for the discriminatory acts conducted by its employees whether or not they are authorized by the employer. Therefore, judge allowed the appeal (Lexum, n.d., HRCR, n.d.).
In my view it is valid if employer is held responsible for the acts of employees in case when employer does not take any measures to prevent sexual harassment at workplace. From the above case law it is clear that employer of the organization are liable under section 7 of human rights act of Canada because sexual harassment is indirectly discrimination between two persons. There are two reasons which can prove that it is important to impose vicarious liability on the employer:
First, employers have control over the organization and they are responsible to make the environment healthy for its employees. Employers are the person, who directs the behaviors of their employees, and they have responsibility to share the goods and bad result of their behavior. Employer is entitled for the rewards of the behavior and actions of the employees; similarly he is also liable for the bad behavior and legal liability of the employee. Employer enjoys all the profit earns from the work of its employees, and also grows its enterprise because of the actions of its employees. There we can say that it is the liability of the employer that he also bears the legal liability arises because of action of its employees.
Second reason is employer is the person who is the only person that provides some kind of remedies to the victim. In case of injury or harmed to the employee, employer is the most suitable person who can pay these remedies. As we have already stated above that act of Canada and legal system give more importance to provide remedy to the victim, instead of looking for causes of harm. Only employer can give environment at workplace which is free from harassment, compensation for the loss of wages, and Reinstatement of an employee. This liability on employer also serves the purpose of statutory liability, and these remedies also impose responsibility on the organization that has control and is in the position to take effective remedial action (Find law, n.d.).
At last we conclude that for this legal issue it is clear that for the benefit of victim it is necessary that employer bears liability for the acts of its employees, and must compensate the victim in case if sexual harassment is occurred at workplace by his employee.
This paper contains the discussion related to liability of employer for those actions of its employees which are outside the scope of employment. In this we discuss the legal issue sexual harassment at workplace. In this we first discuss the meaning and law related to sexual harassment in Canada. Supreme Court of Canada defines the meaning of sexual harassment at workplace in such manner that any conduct which is sexual in nature and unwelcomed by the victim is considered as sexual harassment, and section 7 of OHRC and Division XV.1 of Part III of the Canada Labour Code state the provisions related to sexual harassment at workplace. Canada Labour Code states that every employee in Canada has right to work in the environment which is free from sexual harassment. Section 7 of OHRC defines the rights of the person to free from harassment related to sex and any other comment which was related to gender at workplace or housing.
In this we state two divergent views related to this legal issue. In some cases it is justified that employers has vicarious liability for the acts of its employees, but in some cases it seems unjustified to held the employer liable for the acts of its employees which are done out of the employment. In this paper we discuss the question and views whether employer should be held liable or not for the acts of its employees, and in last we conclude that it is necessary for justice that employer must held liable for the acts of its employees.
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