Employer Liability for Sexual Harassment in the Workplac - Smples

Question: Discuss about the Employer Liability for Sexual Harassment in the Workplace: Should Employers be Liable for the Actions of Employees that are outside the scope of employment. Answer: Introduction Employers of Canada are considered to be liable for any sexual harassment in the workplace (ww.canada.ca, 2018). However it is subject to debate whether employers should be liable for the actions of the employee, which are beyond their scope of employment. It is to be stated that the employers are vicariously liable for the actions of their agents when such agent acts within the scope of his employment and draws authority from the concerned employer. However as held in the remarkable Canadian case Bazley v. Curry, 1999 CanLII 692 (SCC) it can be stated that any person who creates the loss to be suffered will bear the consequences of the risk when such risk becomes a threat or a harm. Thesis statement Employers are to be held accountable for the sexual harassment in the work place. Legal framework summary: Different laws are there to protect the rights of the employees against acts of sexual harassment in Canada. Examples of such laws include Canada Labour Code and the Canadian Human Rights act (Canada Labour Code, 2018). Further it can be said that worker in Canada are given special protection against heinous acts of physical assault and other forms of sexual harassment by the Canada Criminal Code. Sexual Harassment in the workplace can be defined as unwanted sexual behaviour which takes place in the working environment. Such unwanted sexual behaviour can be encountered even outside the premises of the office, for example in office parties, conferences related to work or at any business deal. Sexual behaviour can include sexual jokes, comments and sexual touching which are derogative and demeaning to the victim employee. In the notable Canadian case Janzen v. Platy Enterprises Ltd., 1989 1 SCR 1252 it was held by the supreme court that sexual harassment would be constituted by any con duct which of sexual nature and which affects the work environment and the other co-workers or constitutes adverse job related to consequences for the victims of such harassment( www.globeandmail.com, 2018). In the aforementioned case it was also held by the Supreme Court that Sexual Harassment can even include sexual discrimination. Sexual discrimination has an adverse effect on the opportunities and condition of employment, which are provided to the employees on the basis of their gender related characteristics. It was held in the case Janzen v. Platy Enterprises Ltd., 1989 1 SCR 1252 that employers are also liable for the wrongful actions of the offending employee. It is to be stated that there are two types of sexual harassments that generally occur at workplaces. They are: Quid pro quo Hostile work environment Quid pro quo sexual harassment The term Quid Pro is a Latin term which means this for that. It can also translate to a favour for a favour. An example of Quid pro quo is when a supervisor or superior at work tends to favour an employee if such employee submits to the sexual advances of the senior (Becton, Gilstrap Forsyth, 2017). It is to be mentioned that this constitutes abuse and misuse of authority and it is illegal irrespective of the fact whether the employee submits to the sexual advances of the superior at work. Hostile Work Environment Sexual Harassment Creating a hostile work environment is a common type of sexual harassment in the workplace. Sexual harassment which creates a hostile work environment includes series of incidents which involve intimidation and hostility. Even one incident of sexual assault; however is enough to create a hostile work environment for the entire workforce (Sinacore Morningstar, 2017). This type of sexual harassment has a detrimental effect on the employee and also adversely affects the performance of the employee in the workplace. Hostile work environment sexual harassment can be constituted by verbal and physical gestures which are unwanted and are sexual in nature. According to Becton, Gilstrap Forsyth (2017), that it is the duty of the employers to provide the employees with a safe working environment which is free of harassment. The employers also have the responsibility of to prevent any sexual harassment and which might happen in the workplace (Goldberg, 2014). Employers are subjected to legal consequences and liable to pay penalties in monetary terms if such employers ignore complaints of employees related to sexual harassments in the work place according to the provisions of Canada Labour Code and Canadian Human Rights Act and Canada Criminal Code Workers who tend to get harassed in the workplace It is to be noted that most of the victims of sexual harassment in the workplace are women. Workplace sexual harassments are not just limited to unwanted sexual conduct between male bosses and female employees. Sexual harassments in the workplace may include incidents as enumerated below: Supervisor and an employee, when the supervisor has taken advantage of his position A subordinate who harasses a supervisor Men co workers harassing female co workers Female co workers harassing male co workers Harassment related to sexual orientation Third party harassment which include harassment by suppliers and customers Division Division XV.1 of Part III of the Canada Labour Code states that an employee has the right to be employed in a workplace which is free from harassment of any kind. It also states that employers are required to take action for prevention of sexual harassment in the workplace (Canada Labour Code, 2018). It is to be further mentioned in accordance with the code that every employer of an organization is required to make reasonable effort in order to make sure that no employee of the organization faces harassment. It is to be mentioned that every employer of organizations must formulate a policy on sexual harassment after having a consultation with the employee. Such policy of sexual harassment must contain the following the provisions: Definition of sexual harassment in compliance with the definition as provided in the Canada Labour code A statement with the representation that every employee is entitled to harassment free work environment A statement representing the fact that employers are entitled to take disciplinary measure against those personnel who are found in violation of the Sexual Harassment policy A statement about how complaints sexual harassments can be filed and how to intimate the management about incidents of sexual harassment faced by employees A statement which aims to inform the employees about the human rights and how to file complaints of sexual harassment in accordance with the provisions of Canadian Human Rights. A connection to the workplace Marshall (2017), has argued that for sexual harassment to amount to workplace sexual harassment, there must be a connection to the workplace in consideration. It is to be further mentioned that this criterion has now become mostly superficial. Most of the workplaces have borders which are traditional in nature. An act of sexual advancement or sexual harassment by an employee outside the office premises has little or no legal relevance and an employer cannot be held liable for the same (Marshall, 2017). However, it is to be stated that if an employer comes to know of the sexual advancements and unwanted sexual conduct exhibited by an employee even if the act of sexual harassment is outside the workplace, such employer is required to investigate about the reality of the complaint. The employer needs to ensure that workplace is defined in a broad sense and s free from harassment. Comparison and Contrast of Views in Respect of the Legal Issue The court of appeal of Ontario has stated that the liability of employers in relation sexual harassments in the workplace is to be assessed by the application of a test (Goldberg, 2014). The Human Rights code of Ontario has a provision which holds employers responsible for conduct of his officials, officer agents or employees. Smit Viviers (2016), stated that provision as provided in the code of Human Rights does not aim to restrict or limit the right of freedom sexual harassment in the workplace that is provided in the human rights code of Ontario. Thus it can be stated that the employer will not face liability for the wrongdoings of the employees according to the human rights code of Ontario. This human rights code states that complaint of sexual harassment must be brought on the name of the accused person only. According to the federal legislation it can be said that the employer has the due diligence ground of defence when faced with charges of vicarious liability (Hudson, 2018). How to prove that the employer had been diligent enough to prevent any occurrence of sexual harassment in the workplace, he must prove the following: that he did not consent to the wrongful conduct of the accused employee he used all due diligence to prevent the occurrence of sexual harassment in the workplace. He acted reasonably and did all that he did everything in his capacity to avoid the consequences or minimize the same. The aforementioned provisions do not however limit the liability of the employer in case of sexual harassment in the workplace under the process of administration. According to the concept of organic liability it can be said that employer and his company will be held responsible for the principals conduct. However organic liability acts differently from vicarious liability (Smit Viviers, 2016). The theory of organic liability states that any company or organization is a legal entity and thus has to rely on the conduct of the principals for performing the operations of the company. Thus the by the application of the theory mentioned above it can be said in a case of sexual harassment in the workplace the company will face liability due to the deeming provision of liability as imposed by the statute. Acts of sexual harassments can form a poisoned work environment in the workplace which is likely to adversely affect the productivity and morale of the workplace (Herbert, 2014). According to the Ontario code of human rights it is to be stated that it is the liability of the management to remove such poisoned work environment in order to provide the employees of the organization with a harassment free workplace. Management employees of organizations who fail to remove or eliminate the root cause of sexual harassment in the workplace may be held personally liable for the breach of their duty. Reprisal is the retaliatory conduct of the management for acts of sexual harassment or any harassment in the workplace. However the term reprisal often creates confusion as reprisal can be of two types: General Reprisal- The term general reprisal is often defined as the actions taken by the management upon receiving complaints of sexual harassment which are in compliance with the human rights. It is to be stated that the term reprisal often creates confusion. Sexual Reprisal- The term sexual reprisal can be defined as the actions taken by employers against those who have not acceded to the demands for sexual favours. This conduct can be termed as sexual harassment (www.ohrc.com, 2018). The conduct of the employers which is retaliatory to the commencement or threat of the human rights complaint is called reprisal. However reprisal is very different from sexual solicitation. It is to be mentioned that proof of intent is required for General Reprisal unlike complaints of discriminatory conduct. Such proof of intent as required for general reprisal can be inferred from circumstantial evidence. However in the case Canada (Treasury Board) v. Robichaud(1987), 8 C.H.R.R. D/4326 (S.C.C.) it was held by the supreme court of Canada that employers are to be held liable for the discriminatory acts of the employees during the course of employement. In this case the federal court of appeal had given the verdict that Ms. Robichaud had been victim of sexual harassment during her course of employment in the department of national defence. However, the aforementioned department cannot be held liable for such harassment faced by them. This decision of the court of appeal was overturned by the Supreme Court. The Supreme Court held that the basic purpose of the Canadian Human Rights Act is to remove every form of discrimination in the workplace. My opinion as to which of the two views is superior, and why Thus in my opinion it can be said that Employers can be held liable for sexual harassment faced by the employees even beyond the scope of employment because the basic principle behind this is the principle of vicarious liability which states that the principal will be accountable for the actions of the agents. For the purpose of analyzing sexual harassment in the workplace it is essential to define workplace in a broad sense. However, it is to be stated that if an employer comes to know of the sexual advancements and unwanted sexual conduct exhibited by an employee even if the act of sexual harassment is outside the workplace, such employer is required to investigate about the reality of the complaint. The employer needs to ensure that workplace is defined in a broad sense. Further to substantiate my opinion it can be said in accordance with the Canadian Labour code that it is the duty of the employer to provide a harassment free working environment to the employee. Conclusion Therefore in conclusion it can be said that in case of sexual harassment faced by the employees the employers are to be held accountable. However it can be argued that employers should not always be held accountable as they are unaware of the actions of their employees. It has been stated by the court of appeal of Ontario that the liability of the employer for the wrongful actions of the employees must be assessed by the application of an objective test. However the Supreme Court held in the case Canada (Treasury Board) v. Robichaud(1987), 8 C.H.R.R. D/4326 (S.C.C.) that employers are to be held accountable for discrimination and sexual harassment. Further by the application of the theory of organic liability it can be stated that a company is a legal entity and it has to rely on the principals for performing its operations. Thus the company or organization will be held responsible for the wrongful act of the employees. References https://www.canada.ca/en/employment-social-development/programs/employment-standards/federal-standards/sexual-harrassment.html Canada Labour Code. (2018).Laws-lois.justice.gc.ca. Retrieved 6 March 2018, from https://laws-lois.justice.gc.ca/eng/acts/L-2/index.html Reprisal. (2018).Ontario Human Rights Commission. Retrieved 6 March 2018, from https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/11-reprisal What counts as workplace sexual harassment in Canada?. (2018).The Globe and Mail. 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