Workplace Sexual Harassment

Employer Liability

Naming Personal Respondents

The administrative remedy for sexual harassment is much the same as for any human rights remedy, with one significant exception, which is determining which persons should be named as defendants in the proceeding.

The issue of whom should be added in a human rights complaint for sexual harassment is regrettably complicated. The answer to this question depends very much on the statute of the relevant jurisdiction and also the nature of the remedy which is sought.

There are different types of remedies which may be sought in a claim which has emanated from conduct which is sexual harassment. The first is a pure claim alleging such abusive conduct. The second is the more general complaint by which the applicant asserts the existence of a poisoned work environment and/or reprisal due to the filing of a complaint. The type of relief sought will have an impact on the question of whom should be added as a respondent.

In Ontario, the employer is liable for the complaints of a poisoned workplace and a reprisal claim due to the filing of the complaint 1 The employer in Ontario is not liable for a sexual harassment complaint.

In a pure sexual harassment complaint, the initial view often presumes that the employer has liability. This need not be so in many jurisdictions, as set out below. In addition, many statutes allow for an employer “due diligence” defence.

Ontario's Peculiarities

Ontario’s act creates for most human rights violations deemed employer liability but denies its application to a sexual harassment case. The liability of the corporate employer in a human rights administrative process presents real difficulties for the applicant in a sexual harassment complaint.

Ontario’s statute has a deeming provision holding an employer responsible for the conduct of its officer, official, employee or agent in the course of their employment. 2

This provision, however, does not apply to freedom from harassment in the workplace, sexual harassment in the workplace and sexual solicitation and freedom from reprisal connected to sexual solicitation. 3

There hence is no deemed liability upon the employer for wrongdoings under these remedy sections.

Thus, under the Ontario Code, the deeming provision holding the employer responsible for the acts of its employees, agents or officers, does not apply to sexual harassment. Such a complaint must be brought personally against the individual who is accused of the offensive conduct. 4

The individuals who are responsible for the offensive conduct must be named in the proceeding as respondents.

Ontario does allow for direct employer liability based on its statute for claims similar to sexual harassment. These include a claim for a poisoned work environment, the failure to investigate and general reprisal, that is, as distinct from sexual reprisal. These claims are discussed here.

The employer in most cases should nonetheless be also named as a respondent. Any apparently related companies that may be involved in the business should also be named.

Employer Liability

The principle of vicarious liability will generally mean that the employer is legally responsible for the acts of its employees which take place in the course of employment.The test for vicarious liability in civil cases is much different from the liability created by the human rights statute. That issue is reviewed here.

Most human rights statutes deem that the company is responsible for the actions of its employees, officers and directors in that circumstance. Absent such a provision in the relevant statute, the leading case on this subject has also determined that the employer should be responsible for human rights violations of its employees in the course of employment. 5

There are, however, some important exceptions to this concept.

Many jurisdictions by the relevant legislation have amended the principle by which an employer has been determined to be responsible for the actions of its employees, as described below.

B.C. does not have such a statutory provision. Accordingly the relevant law is the common law by which the employer is responsible, in a human rights context, for all acts of its employees committed in the course of the employment relationship.

The law is the same as in B.C. in Saskatchewan, Nova Scotia, PEI, Newfoundland & Labrador, NWT, Nunavut and Quebec.

Due Diligence Defence

Other jurisdictions have allowed the employer what is essentially a “due diligence” defence to the complaint, as reviewed here.

When expecting such a defence from the corporate employer, regard should be had to naming the personal wrongdoers in the proceeding.

Organic Liability

This does not, however, end the analysis of employer liability, again to a complaint of pure sexual harassment.

This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply. This issue is reviewed here.

This is essentially what New Brunswick codified in its legislation. There is no need, however, for the relevant statute to state such a principle.

The persons who act as the “directing mind” of the corporation will not only allow for the liability of the corporation for their actions 6 but will also attract personal liability. 7 This is true for all administrative jurisdictions.

This principle is one to be distinguished from the common law cases dealing with the "controlling mind" concept to pierce the corporate veil as is reviewed here. The common law test is much more difficult to meet.