Recently, the law on workplace sexual harassment has evolved to a more sophisticated level. Most conscientious employers now understand their duty to create and enforce anti-harassment policies. In fact, recent cases suggest that they occasionally understand this duty better than trial judges.
At the same time, the courts seem to be expanding employer liability to the point that a company can find itself on the hook for even the criminal sexual conduct of individual employees — conduct significantly beyond the bounds of workplace duties or even job-related “horsing around.”
Probably the most significant recent judgments in the area are two which the Supreme Court of Canada released as a package last summer. In lawsuits concerning sexual abuse of children by employees, the top court scrapped the old test for employer liability, the standard that said employers were responsible for employee conduct only when the employees acted within the scope of their workplace duties — for example, when a store’s driver ran a red light while on a delivery and collided with another vehicle.
The new standard, as stated by Justice Beverley McLachlin (now Chief Justice of Canada), says that an employer is liable “where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires (italics added).”
If the risk of the employees’ improper conduct is “generally foreseeable” by the employer, the employer will be liable.
On that reasoning the court found that a residential facility for emotionally troubled children was vicariously liable for a staff member’s sexual assaults: the nature of the facility’s business gave the employee “opportunity for intimate private control and the parental relationship and power” over the victim, the court held.
However, in a second ruling, the Boys’ and Girls’ Club of Vernon, B.C., was not vicariously liable for sexual assault where the staffer met the children at the club but abused them away from its premises and normal activities.
The distinction between these cases awaits real clarity: Justice McLachlin herself was in the dissent on the second case (she would have found the club liable), right after defining the new standard in the first.
Firing offenders
The highest provincial courts, however, have recently stood firmly behind employers where the latter have summarily fired sexual harassers.
In late 1998, to take the prominent example, the Ontario Court of Appeal was extremely critical of a trial judge who ruled that General Motors should not have dismissed supervisor Alan Bannister for making sexual comments to — and in at least one instance kissing without asking — female summer students. The court was particularly annoyed that the trial judge trivialized Bannister’s conduct as that of a “would-be” instead of a successful womanizer, and that the judge characterized the workplace atmosphere as one where the young women “gave as good as they got.”
In the Gonsalves case, decided around the same time, the same highly influential Appeal Court ruled that the Catholic Church Extension Society had just cause to fire an operations manager, even though his sexual harassment of his assistant had ended seven months earlier. The court overturned the trial award of $200,000 damages to Gonsalves (he was 59, with 22 years of service) for wrongful dismissal.
In Bannister, the Court of Appeal specifically noted that GM had gone by the book in dealing with sexual harassment, doing all the law expected in clearly posting an understandable anti-harassment policy and sending supervisors on related courses. The court emphasized that, in the modern workplace, supervisors have a duty both to their staff and to their employers to behave with integrity, and that “equality between the sexes” is the standard.
Handling harassment
As Bannister shows, in implementing written policies and regular training programs, employers should define harassment expansively, preferably so that it encompasses any sort of offensive conduct or comment of a sexual nature.
The policy should list clear examples of harassing behaviour, stipulating that it includes comments about a person’s appearance, insulting or suggestive noises, suggestive remarks and jokes, the displaying of pornography or other sexual material (a particular concern with the introduction of the Internet into the workplace) and unnecessary touching.
What is “harassment” will depend on the comfort level of the individual employee. However, the alleged harasser should at least “have reasonably known” that the colleague would be uncomfortable in the situation: the law protects the hypersensitive only if alleged harassers have some reason to know about their colleague’s unusual vulnerability. And of course not all harassment is a firing offence. But the policy should stipulate that any harassment can result in disciplinary measures, including dismissal.
Other points to remember regarding the creation and enforcement of the workplace policy include the following:
•Some employers leave nothing to chance by referring to their harassment policy in the employment contract, incorporating it as a term of employment and having employees sign off on it.
•The policy should establish a complaint and investigation process that is accessible, discreet and quickly responsive.
•The employer must act immediately to investigate complaints, remaining neutral at that stage while always protecting confidentiality as much as possible. However, because alleged harassers have a right to know the details of the complaint, the investigators cannot guarantee confidentiality to anyone.
•The policy should expressly protect employees against harassment by customers and suppliers.
•Even the prompt firing of a harasser, however, will not absolve an employer of human rights violations if senior staff don’t otherwise take their obligations seriously.
Last spring, a British Columbia human rights tribunal ordered an employer to pay two female employees $2,800 after their co-worker “came on” to them sexually. Although the general manager acted quickly against the harasser, the tribunal found that the manager, himself, had made sexual remarks and jokes about the women.
Employers should carefully document all interviews. Preferably, the complaint and the alleged harasser’s response should be in writing. Signed statements from witnesses, where possible, can also be very useful, particularly if litigation ensues.
Jeffrey Miller is the editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or 1-800-387-5164.
At the same time, the courts seem to be expanding employer liability to the point that a company can find itself on the hook for even the criminal sexual conduct of individual employees — conduct significantly beyond the bounds of workplace duties or even job-related “horsing around.”
Probably the most significant recent judgments in the area are two which the Supreme Court of Canada released as a package last summer. In lawsuits concerning sexual abuse of children by employees, the top court scrapped the old test for employer liability, the standard that said employers were responsible for employee conduct only when the employees acted within the scope of their workplace duties — for example, when a store’s driver ran a red light while on a delivery and collided with another vehicle.
The new standard, as stated by Justice Beverley McLachlin (now Chief Justice of Canada), says that an employer is liable “where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires (italics added).”
If the risk of the employees’ improper conduct is “generally foreseeable” by the employer, the employer will be liable.
On that reasoning the court found that a residential facility for emotionally troubled children was vicariously liable for a staff member’s sexual assaults: the nature of the facility’s business gave the employee “opportunity for intimate private control and the parental relationship and power” over the victim, the court held.
However, in a second ruling, the Boys’ and Girls’ Club of Vernon, B.C., was not vicariously liable for sexual assault where the staffer met the children at the club but abused them away from its premises and normal activities.
The distinction between these cases awaits real clarity: Justice McLachlin herself was in the dissent on the second case (she would have found the club liable), right after defining the new standard in the first.
Firing offenders
The highest provincial courts, however, have recently stood firmly behind employers where the latter have summarily fired sexual harassers.
In late 1998, to take the prominent example, the Ontario Court of Appeal was extremely critical of a trial judge who ruled that General Motors should not have dismissed supervisor Alan Bannister for making sexual comments to — and in at least one instance kissing without asking — female summer students. The court was particularly annoyed that the trial judge trivialized Bannister’s conduct as that of a “would-be” instead of a successful womanizer, and that the judge characterized the workplace atmosphere as one where the young women “gave as good as they got.”
In the Gonsalves case, decided around the same time, the same highly influential Appeal Court ruled that the Catholic Church Extension Society had just cause to fire an operations manager, even though his sexual harassment of his assistant had ended seven months earlier. The court overturned the trial award of $200,000 damages to Gonsalves (he was 59, with 22 years of service) for wrongful dismissal.
In Bannister, the Court of Appeal specifically noted that GM had gone by the book in dealing with sexual harassment, doing all the law expected in clearly posting an understandable anti-harassment policy and sending supervisors on related courses. The court emphasized that, in the modern workplace, supervisors have a duty both to their staff and to their employers to behave with integrity, and that “equality between the sexes” is the standard.
Handling harassment
As Bannister shows, in implementing written policies and regular training programs, employers should define harassment expansively, preferably so that it encompasses any sort of offensive conduct or comment of a sexual nature.
The policy should list clear examples of harassing behaviour, stipulating that it includes comments about a person’s appearance, insulting or suggestive noises, suggestive remarks and jokes, the displaying of pornography or other sexual material (a particular concern with the introduction of the Internet into the workplace) and unnecessary touching.
What is “harassment” will depend on the comfort level of the individual employee. However, the alleged harasser should at least “have reasonably known” that the colleague would be uncomfortable in the situation: the law protects the hypersensitive only if alleged harassers have some reason to know about their colleague’s unusual vulnerability. And of course not all harassment is a firing offence. But the policy should stipulate that any harassment can result in disciplinary measures, including dismissal.
Other points to remember regarding the creation and enforcement of the workplace policy include the following:
•Some employers leave nothing to chance by referring to their harassment policy in the employment contract, incorporating it as a term of employment and having employees sign off on it.
•The policy should establish a complaint and investigation process that is accessible, discreet and quickly responsive.
•The employer must act immediately to investigate complaints, remaining neutral at that stage while always protecting confidentiality as much as possible. However, because alleged harassers have a right to know the details of the complaint, the investigators cannot guarantee confidentiality to anyone.
•The policy should expressly protect employees against harassment by customers and suppliers.
•Even the prompt firing of a harasser, however, will not absolve an employer of human rights violations if senior staff don’t otherwise take their obligations seriously.
Last spring, a British Columbia human rights tribunal ordered an employer to pay two female employees $2,800 after their co-worker “came on” to them sexually. Although the general manager acted quickly against the harasser, the tribunal found that the manager, himself, had made sexual remarks and jokes about the women.
Employers should carefully document all interviews. Preferably, the complaint and the alleged harasser’s response should be in writing. Signed statements from witnesses, where possible, can also be very useful, particularly if litigation ensues.
Jeffrey Miller is the editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or 1-800-387-5164.
