Canadian Employment Law Today

Dual obligations to 'believe the women' and provide due process How the #metoo movement will challenge employers' responses to harassment allegations in their workplaces BY MICHAEL WAITE A s trusted legal advisors to employ- ers and employees, employment lawyers want to underscore that employers have a duty to keep their employees safe from sexual harass - ment. At the same time, it must be remem- bered that employers also have a duty to conduct a fair investigation without a rush to judgment. After briefly discussing exactly what sexual harassment is, we will review the scope of these duties, and best practices of employers to safeguard their employees. What is sexual harassment? In Alberta, an employer has duties to keep employees safe from sexual harassment under the province's Occupational Health & Safety Act and the Alberta Human Rights Act. Employers in other provinces have similar obligations. e Supreme Court of Canada in the seminal case of Janzen v. Platy Enterprises Ltd. clearly enunciated what sexual harassment is: un- welcome conduct of a sexual nature that detrimentally affects the work environ- ment or leads to adverse job-related con- sequences for the victims of the harass- ment. Sexual harassment is not limited to demands for sexual favours, but also en- compasses situations in which sexual de- mands are foisted upon unwilling employ- ees or in which employees must endure sexual groping, propositions or inappro- priate comments. Other authorities estab- lish that sexual harassment can be either overt or discrete, and can include conduct of a physical, mental, psychological or ver- bal nature. It is not necessary that there be an intention to harass to establish harass- ment. e harassing conduct also does not need to be directed at a specific indi- vidual — the actions of the harasser can be such as to create a hostile or poisoned work environment. Sexual harassment usually has an element of persistence or repetition, although a particularly severe but isolated incident may suffice to estab- lish harassment. Although the majority of claims involve harassment of women, there is no gender-specific qualification and it is possible for members of the same sex to sexually harass each other, as well as a woman to harass a man (Halsbury's Laws of Canada — Discrimination in Hu- man Rights (2013 reissue). Sexual harass- ment can also occur in any combination of working relationships, including between fellow employees, in addition to harass- ment by a supervisor of subordinates. Employer duties in the face of sexual harassment e authorities have made it clear that vicarious liability of the employer for the sexual harassment of its employees will only be established if the harassment oc- curs "in the course of employment," as is illustrated by the leading 1987 case Robi- chaud v. Brennan. An employer, however, does not have to have actual knowledge of the harassment for the employer to be held vicariously liable. e following activities have been found to be within "the course of employment": • Activities which the employee might nor- mally or reasonably do or be specifically authorized to do while employed • Activities which fairly and reasonably may be said to be incidental to the em- ployment or logically connected with it • Activities in furtherance of duties the em- ployee owes to her employer • Activities in furtherance of duties owed to the employer where the latter is exer- cising or could exercise control over what the employee does. is means that the employer could be liable for sexually harassing behaviour that occurs outside of work hours as well as outside of the workplace. e recent Supreme Court of Canada decision British Columbia Human Rights Tribunal v. Sch- renk, also holds that an employer can be li- able for sexual harassment by an employee of people outside of the company, such as a worker from another company working at a common worksite. Minimum duties of the employer e recent Alberta case Watkins v. Wil- low Park Golf Course Ltd., suggests that the minimum duties of an employer in the face of sexually harassing behaviour by one of its employees may be to: • Give a warning to the alleged sexual ha- rasser to cease his conduct (although if the harassment is severe a warning may not in fact be required before termination) • Investigate the complaint of sexual ha- rassment (although failure to conduct an adequate investigation may not in and of itself be fatal to safeguard against a wrongful dismissal action) • In egregious circumstances, terminate the employment of the harasser. e 61-year-old supervisory ground- skeeper at the golf course became infatu- ated with his employee, who was 32 years his junior. She was not interested in his romantic advances and made this clear to him. Nonetheless, he continued to pursue her, and when he felt rebuffed, harassed her with verbally abusive language, bul- lying, stalking and surveillance. She was a single mother who needed her employ- ment to support herself and her child, and as a result of the harassment she was under great stress. e employee wrote a letter to the directors of the golf course complain- ing of the harassment and the directors immediately terminated the supervisor. He sued for wrongful dismissal, but the Alberta Court of Queen's Bench dismissed the wrongful dismissal action on the basis that his termination was justified as a result of his harassment of the employee. Watkins is helpful in that it suggests minimum duties of an employer in the face of sexual harassment by one of its staff. Justice Hollins of the Alberta Court of Queen's Bench suggested that there is 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: SEXUAL HARASSMENT WE HAVE ALL watched the growing sexual harassment scandal roiling the American entertainment industry and causing the downfall of American political figures (with notable exceptions). Corporations and organizations across North America in numerous industries are dealing with an onslaught of credible allegations, some involving high profile employees and senior executives. Employers will be under pressure to act decisively perhaps from multiple sources (employees, media, and shareholders, for example). Termination for cause will be the appropriate outcome in some cases but not in others. BACKGROUND

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