Employers Liable for Sexual Harassment of Employee

Canada (Treasury Board) v. Robichaud (1987), 8 C.H.R.R. D/4326 (S.C.C.)

The Supreme Court of Canada unanimously finds that employers are liable for the discriminatory acts of their employees in the course of their employment.

This is an appeal by Bonnie Robichaud and the Canadian Human Rights Commission from a decision of the Federal Court of Appeal which ruled that, although Ms. Robichaud was sexually harassed by her supervisor while she was employed by the Department of National Defence, the Department of National Defence was not liable for the contravention of her rights.

The Supreme Court of Canada in overturning this decision finds that the purpose of human rights legislation is to remove discrimination. The legislative emphasis is not on finding fault, but on remedying discrimination. The purpose of the Canadian Human Rights Act which is to prevent discrimination and eliminate the effects of discriminatory acts would be thwarted by an interpretation which deemed employers not liable for the conduct of their employees. The Act is concerned with the effects of discrimination not causes, and only an employer can remedy undesirable effects. Reinstatement of an employee, compensation for lost wages, and a discrimination-free environment are remedies only an employer can provide. The remedial objectives of the Canadian Human Rights Act would be stultified if remedies were not available as against the employer.

It is unnecessary to attach any label to this liability; it is purely statutory. It serves the purpose of placing responsibility for an organization on those who control it and are in a position to take effective remedial action.

While the conduct of an employer is irrelevant to the imposition of liability, a quick and effective response to remedy discrimination and prevent its recurrence is likely to affect the remedial consequences of a violation of the law.

In a concurring judgment, The Honourable Mr. Justice Le Dain finds that employers are liable under s. 7 of the Act because the section prohibits discriminatory acts undertaken directly or indirectly. Because indirect discrimination is prohibited the employer is liable for discriminatory practices whether or not they were authorized or intended by the employer.

The appeal is allowed.

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