( Disponible en anglais seulement )
The Human Rights Tribunal of Alberta has had a summer of interesting decisions. Following on its decision respecting accommodation of childcare needs, already blogged about earlier this month, the Tribunal also released a decision respecting the responsibility of employers for the conduct of third parties, and the responsibility to take coordinated action against harassment in the workplace. Piecemeal responses, no matter how well-intentioned and numerous, will not suffice.
In its decision, the Tribunal considered a complaint from a teacher who was harassed by a student through various means of communication including phone calls, emails, and social network messages, over a period of nearly two years. The communications were eventually traced back to the student, who admitted to having sent them. The harassment persisted even following disciplinary action from the school. As the school introduced harsher disciplinary measures, the comments became more offensive and began to target the complainant on the basis of race and ancestry. The student ultimately spread false rumours about having been sexually assaulted by the complainant, triggering a police investigation.
The school intervened and took increasingly significant steps in relation to the many acts of harassment. These steps included suspending the student and her accomplices as well as holding meetings with the parents of the student. Ultimately the student was expelled from the school and forbidden from coming back onto the grounds. The harassment ended when the student finally left the school district.
The tribunal ultimately found liability on the part of the employer for the discriminatory actions of the student. Citing the broad interpretive approach to human rights legislation, as well as certain jurisprudence from other jurisdictions on liability of an employer for third party conduct, the tribunal found that the employer was liable for the discriminatory acts of the student because the employer had control over the workplace and authority over the student.
Although the school did much to attempt to stop the harassment, the tribunal found that the school approached the issues in a piecemeal fashion which did not adequately deal with the global issue. The school had many different officials dealing with the various incidents of harassment, which led to discipline being administered on an incident-by-incident basis, without reference to the persistent pattern of harassment.
The case is of particular interest in imposing liability for the conduct of a third party. Employers might be said to have some control over their own employees, but one might argue that a school board has less control over a student. One wonders what the result would be in the case of a true third party, such as a customer of an organization, or a parishioner of a church, for example. Saskatchewan and British Columbia cases have grappled with the question of third parties, and no doubt further case law may be needed to flesh out any bright lines.
What can be taken away from this case is that employers can, in certain circumstances, be liable for discriminatory actions of third parties if they don’t take adequate and coordinated steps to address the issue. Employers would do well to ensure that a single capable individual within the organization is given carriage of the matter, and that patterns and history are considered, such that action is taken that is proportional to the gravity of the situation seen as a whole.