Please enable javascript to view this page in its intended format.

Queen's University
 

Robichaud

Is the employer liable for sexual harassment committed by its supervisory personnel?

Facts

In 1980, Bonnie Robichaud, a lead hand at the Air Defence Command Base in North Bay, filed a complaint of sexual harassment against her supervisor (Dennis Brennan) and her employer (the Department of National Defence). A Human Rights Tribunal found that Robichaud had not been sexually harassed by Dennis Brennan, because she had voluntarily engaged in sexual acts with him. A Review Tribunal overturned this decision when it determined that Brennan had coerced Robichaud into sexual submission by using threats of employment-related reprisals. Voluntary participation is not the same as consensual participation, it underscored.  The Tribunal ruled that Brennan had sexually harassed Robichaud and that the Department of National Defence was strictly liable. Subsequently, this ruling was partially overturned by the Federal Court of Appeal who agreed that Brennan had sexually harassed Robichaud, but decided that the complaint against the employer was unsustainable. However, the Supreme Court of Canada overturned this decision, ruling that "an employer is responsible for the unauthorized discriminatory acts of its employees in the course of their employment under the Canadian Human Rights Act." (Robichaud et al. v. The Queen. 40 D.L.R. (4th) 577 Supreme Court of Canada, July 29, 1987).

Questions

  1. Is the employer liable for the discriminatory acts of its supervisory personnel?
  2. If the employer takes steps to improve the situation, is it still liable for the discriminatory acts of its supervisory personnel?

Rulings

  1. Yes.
  2. Maybe.

Reasoning

  1. "A supervisor's responsibilities do not begin or end with the power to hire, fire and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive, workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases it is the authority vested in the supervisor by the employer that enables him/her to commit the wrong; it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates". (Robichaud et al. v. The Queen, p.7)
  2. The conduct of the employer in response to the act of discrimination of its supervisory personnel is, in principle, irrelevant to the question of liability. Where there is discrimination, there is necessarily liability. However, corrective steps taken by the employer may lessen the degree of liability and reduce the remedy.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000