Liability for sexual harassment can extend to behaviour by non-employees

Earlier this week I read a post over at Wise Law Blog by Annie Noa Kenet titled "UK Employers to Protect Against 3rd Party Sexual Harassment".  While I doubt it was her intention, after reading Ms. Kenet's post I was left with the impression that in making the observation that the UK was now taking specific steps to ensure that employers protected employees from sexual harassment by customers and clients she was suggesting that employers in Canada were not so obligated.  Although there isn't a flood of decisions to refer to in this area, courts and tribunals in Canada have considered claims of sexual harassment by non-employees and, in certain factual circumstances, have held employers liable.

Probably the most notable case is the 1993 decision of the Saskatchewan Court of Queen's Bench in Nixon v. Greensides (could not locate a public link).  In that case, the complainant was a waitress who worked at a bar that was attached to a restaurant.  The owner of the bar sublet the restaurant to a man by the name of Greg Duncalfe.  Duncalfe would often frequent the bar during the evenings and while doing so would sexually harass the female wait staff by grabbing and touching them.  The complainant complained to her employer, Stuart Greensides.  Although Greensides agreed to speak to Duncalfe about his behaviour, and apparently did so, that did not occur until almost two weeks after Greensides learned about the harassment.  Moreover, Duncalfe continued to harass the complainant and other female waitresses at the bar to the point that some of the wait staff went to the police and criminal charges were laid.  The Saskatchewan Board of Inquiry found Greensides liable for failing to effectively deal with the harassment.  Greensides then applied for judicial review of the decision to the Court of Queen's Bench.  In upholding the Board's decision regarding the employer's liability, the court made the following remarks:

"In this case, it is conceded that Duncalfe's conduct in respect of Nixon constituted sexual harassment.  The duty imposed on Greensides as the employer of Nixon is to take action to prevent further incidents of harassment once knowledge of the alleged harassment came to his attention."

In examining Greenside's response to the complaint of harassment, the court stated:

"...there is evidence to support the Board's finding that Greensides did not take action as soon as he became aware of the complaints from Nixon and some of his other female employees.  This finding is critical to liability being imposed on Greensides and is supported by the evidence.

....there was evidence which tended to show that the harassment did not end.  The Board could conclude from this evidence that Greensides' action was ineffective in solving the problem and that in the circumstances stronger action in the nature suggested by the Board was required."

The upshot of Nixon and the tribunal decisions that have followed it is that employers in Canada do have a duty to take prompt and effective corrective steps when an employee complains of, or the employer otherwise becomes aware of, sexual harassment by third parties who enter into the workplace.

See also:

Ontario Human Rights Commission Policy on Sexual Harassment : "Liability on the part of an organization for harassment of its employees by non-employees, such as customers, will depend on the facts of a particular situation, including the employer's knowledge of and control over the situation, and what corrective measures might be available."

Comments

[Garry J. Wise]

Hi Donna:

Firstly, thank you for reading Wise Law Blog. Your post alerted me to your blog, which looks excellent, and will be added to my RSS readings.

You are quite correct in your point. Canadaian human rights legislation clearly imposes a duty upon employers to maintain an environment that is safe from harassment - by co-employees, third parties and all other potential toxic influences.

Our office recently completed a successful resolution in a matter in which our client had been repeatedly harrassed by a truck driver who made regular deliveries to her our client's workplace.

What is interesting about Annie Kenet's post is that this "third party" harassment protection has additionally been codified by statute.

All the best to you, and thank you for posting this clarification.

Garry J. Wise

[Nuclearrain]

This may also be an opportunity for employers and clients/customers to review their own behaviour and ensure that what they see as 'harmless' flirtation is not overstepping boundaries or causing discomfort in others.

You always have such good information in your blog... have you considered asking various chambers of commerces if they could put a link to your site or include a spot for you to write in a newsletter or something like that? Let me know if you need some contacts in this area...

[Donna Seale]

@ Garry: thank you for taking the time to stop by my blog and to provide your comments. It's in the discussion and clarification that occurs between blogs where I find the most interesting tidbits are shared. Your story about the successful resolution of your client's harassment situation is a perfect example.

@ Nuclearrain: My hope is that in reading posts like this (and the many other terrific posts by other lawyers working in this area) that it will make employers pause and reflect on whether their workplace practices fall into line with what the law says. It's that "ounce of prevention.." line. My thanks also to you for your compliments.