Employer Liability under Law
Employer liability for the acts of employees and others associated with the employment relationship should be expressly written into legislation, along with safeguards for employers who establish effective policies and take immediate action upon being informed of harassing conduct. Making employers liable for the safety of their workplace and for protecting their employees against discrimination and violence is an important way to prevent sexual harassment by ensuring institutional accountability. (See: Employer Liability Standards, StopVAW, The Advocates for Human Rights.)
- Australia's approach: Because Australia is a federal system employers are subject to national laws on sexual harassment as well as state and territorial laws in the areas where they conduct business. Although national law does not require employers to take any specific measures in relation to sexual harassment, an Australian employer may be held vicariously liable for sexual harassment committed by its employees. A defence to liability is demonstrating that the employer took reasonable precautions to prevent the misconduct. In assessing whether an employer has taken reasonable steps, courts examine whether employers have a well-communicated and up-to-date sexual harassment policy, provide regular training programs for staff, have trained personnel to receive and manage complaints, provides for confidential investigation of complaints in a prompt and respectful manner, and monitor of the workplace environment and culture for breaches of the sexual harassment. For example, one employer was found not to have taken all reasonable steps to prevent unwanted sexual touching and comments by an employee. The employer’s managing staff had prior knowledge of the harasser’s harassing conduct toward previous employees but “had failed to recognize his behavior as potentially unlawful, or implement appropriate monitoring strategies to ascertain whether staff felt humiliated, intimidated, or offended. This inaction permitted the harasser to continue conducting himself ‘as usual’” and was deemed by the court to be an implicit authorization of the harassing conduct. The employer was found liable for the harassment even though it had taken prompt action to investigate the matter and dismiss the harasser. In 2009, Australian courts awarded a record monetary settlement to a woman who had been propositioned for sex and was sent harassing text messages while working for a home building company. She was fired when she complained about the harassment. Her employer was ordered to pay $466,000 in damages based on the actions of two employees and also was required to pay for her legal fees. Amendments to Australia’s legal framework in 2011 also prohibited sexual harassment through new technologies, such as social media. (See: Geraldine Dann, et al., Are you liable? Sexual Harassment in the Workplace, 2003; Federal Discrimination Law Ch. 7 Damages and Remedies, Australian Human Rights Commission; Huge payout for sexual harassment victim, Australian Broadcasting Company, June 23, 2009; Australian Human Rights Commission, What is Sexual Harassment? (2013); Sexual Harassment Prevention, Ius Laboris, 2012)
- Canada’s approach: Employers covered by federal law in Canada are required to have a sexual harassment policy and such policy must be developed in consultation with employees or with the trade union representing them. Court decisions in Canada impose liability on employers for sexual harassment of their employees by fellow employees, clients, customers or other outside parties if the harassment occurs at the workplace or is connected to the performance of the employee’s work. The Canadian Human Rights Commission has summarized the Canadian courts’ employer liability standard for cases involving sexual harassment in the workplace as follows:
Ultimately, employers are responsible for acts of work-related harassment. The Supreme Court has said that the goal of human rights law is to identify and eliminate discrimination. Employers control the organization, and are therefore the only ones who can actually reverse the negative effects of harassment and ensure a healthy work environment. So no matter what kind of workplace or business the employer operates, there is a responsibility to make sure employees do not experience harassment. If harassment does occur, the employer must show that it did everything possible to prevent it, or to alleviate its effects.
See: Canadian Human Rights Commission, Anti-Harassment Policies for the Workplace: An Employer’s Guide, 2006; Sexual Harassment Prevention, Ius Laboris, 2012.
- Colombia’s approach: In Colombia, individuals have a constitutional right to work. Equality at work also is protected in the Constitution and Labor Code. Law 1010 of 2006 defines employment discrimination as any different treatment on the basis of race, gender, family or national origin, religious creed, political preference, social status, or other factors not pertinent to employment. It recognizes employment discrimination as a prohibited form of employment harassment. Using offensive language about an employee that references her gender is considered to be employment harassment. Law 1010 applies to both the public and private sectors. Employers are required to put in place mechanisms to prevent workplace harassment and to establish an internal, confidential procedure to resolve any incidents of harassment. Victims can also file a complaint with the Ministry of Labour. Unless specified in other laws, Law 1010 imposes a fine totaling two to 10 months of the legal minimum monthly salary for the person who committed the harassment and the company that tolerated it. The employer is also responsible for paying 50 percent of all medical treatment and other related costs resulting from the harassment. (See: U.S. Dept. of Labor, Colombia Labor Rights Report, 35-36 (2008))
- Japan’s approach: In Japan, courts have applied Article 709 of the Civil Code to hold harassers and employers liable for sexual harassment in the workplace. Article 709 defines as torts all actions in violation of the equality principles set out in the Constitution. As a result, Japan’s approach to employer liability standards is based on a doctrine of tort law, respondeat superior. Respondeat superior holds an employer liable for the wrong-doing of an employee when the misconduct is committed within the scope of employment. This doctrine of vicarious liability may be used to hold an employer in Japan responsible for acts of sexual harassment committed by an employee. From: Employer Liability Standards, StopVAW, The Advocates for Human Rights.
- United States approach: In the United States, where sexual harassment law originated, courts apply three different standards in workplace sexual harassment cases, depending on the type of harassment involved and the role of the harasser in the organization.
- Supervisor/ Quid Pro Quo Harassment: The U.S. Supreme Court has held that an employer is always liable for a supervisor or manager’s harassment if it results in a tangible employment action. Tangible employment actions include demotion, firing, or unfavorable changes in work assignment. (See: Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 1999) It can also include employee resignation, under the constructive discharge doctrine, if the employee can show the “abusive working environment became so intolerable that her resignation qualified as a fitting response.” (See: Pennsylvania State Police v. Suders, 542 U.S. 129 (2004))
- Supervisor/ Hostile Work Environment Harassment: In order to encourage employers to adopt sexual harassment policies and restrict the application of automatic liability in cases of hostile work environment harassment, the U.S. Supreme Court has held that, if supervisor harassment does not involve a tangible employment action, the employer may be able to escape liability or limit damages by establishing a specific affirmative defense. To establish this defense, the employer must show (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. (See: Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice No. 915.002 (June 18, 1999))
- Co-Worker or Non-Employee/ Hostile Work Environment Harassment: U.S. courts and the U.S. Equal Opportunity Employment Commission have determined that, in respect of sexually harassing conduct by one co-worker toward another, an employer is liable for this hostile work environment harassment if the employer (or any of its agents or management level employees) knew or should have known of the misconduct. The employer can escape liability, however, if it can show that it took immediate and appropriate corrective action. The standard of liability is the same for harassment committed by non-employees such as clients or vendors of the employer. In non-employee cases, however, the Commission also takes into account “the extent of control and any other legal responsibility which the employer may have with respect to conduct of [harassing] non-employees.” (See: U.S. Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 C.F.R. s.1604.11(d) and (e); U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice No. 915.002 (June 18, 1999); Burlington Industries, Inc. v. Ellerth, 118S.Ct.2257 (1998); (affirming a dismissal of a claim of sexual harassment against co-workers where there was no witness testimony or report filed by the victim to indicate that the employer or managing employees should have known about the harassment))
(From: Employer Liability Standards, StopVAW, The Advocates for Human Rights)