Employer Liability for Workplace Human Rights Violations
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Written on behalf of Peter McSherry
The General Rule
Ontario’s Human Rights Code makes the employer liable for workplace human rights abuse for most of the human rights protected by the legislation[1]. The dramatic exception is sexual harassment.
The Exceptions to the Exception
Who is in Charge
This being said, the employer may still be responsible for a sexual harassment case where the wrongdoer is the “controlling mind” of the employer. In this context, both the employer and the individual respondent are usually jointly responsible. Typically the individual respondent is in a position to direct and control the actions of the company. That person is often a significant owner, director or has significant authority to run the business. A good example of this finding is the recent decision of the Human Rights Tribunal in which $200,000 was awarded for compensation for emotional harm due to prolonged sexual abuse against the owner personally and the company.[2]
The Human Rights Code does allow for other means of holding the employer responsible for similar abuses which are derivatives of a sexual harassment case.
Culture of Entitlement
If the employer has failed to take corrective and affirmative action to maintain a safe and open workplace, a claim may be made that there is a “poisoned work environment”, for which employer liability will follow. If this situation is sufficiently severe, the employee may assert that this has provided sufficient grounds to assert a termination of the relationship and seek a claim for not only compensatory damages for personal humiliation and hurt feelings, but also an award for lost income, reinstatement or a future income loss claim.
Reprisal – Be Careful Here
Reprisal is a word that often leads to confusion as there are two types of reprisal. The first is “sexual reprisal[3]” which occurs when adverse action has been taken against an employee by denying a promotion, raise or some other material benefit for declining a sexual invitation. This leads to a sexual harassment complaint for which the employer is generally not liable.
The second form of reprisal, “general reprisal” is action taken by the company, such as termination, due to the threatened or actual filing of a human rights complaint. Take, for example, a situation in which a female employee has threatened a sexual harassment complaint against the employer. Normally the employer has no responsibility for such a case. However, should the company terminate the employee due to the making of this complaint, then it becomes liable for the general reprisal claim.
Intent is required to be proven, but it can be proven by inference and reasonable inference.
This latter general reprisal claim similarly may include compensatory relief for injured feelings, lost income, reinstatement or future income loss. Ironically, success in the general reprisal claim does not hinge on proving the underlying complaint. It must be, however, one brought in good faith.
These concepts are all related to human rights complaints and not civil actions. There is some overlap as the common law actions do recognize the “controlling mind” concept. The second means of employer liability is that of strict liability via the position of the employer, known as vicarious liability. This, as has been discussed recently, is a difficult argument to win. There does remain a possible argument of employer negligence which, if the reader can possibly wait, remains an article for future review.
Legal Insight Will Unravel the Complexities
The issue of employer responsibility for human rights violations, particularly sexual harassment cases, is not particularly intuitive. Employers need advice to understand their obligations and liability, take preventive measures, ensure a safe workplace and ensure that there is no reprisal of any sort.
Employees must be aware of the default provision of no employer liability in sexual harassment cases and the consequences of such a successful employer defence. A claim against a co-employee abuser may be difficult to enforce. Similarly, employees must know the law of how a company may need to accept liability.
Get Advice
If you have questions about these issues, get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.
[1] These include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
[3] These terms are used for explanatory purposes only. They are not terms found in the Human Rights Code.
