Employers can’t be passive about harassment of staff by customers

Responsibility of ensuring harassment-free workplace lies with the employer

Question: A store employee who often works alone has been harassed repeatedly by a customer and we're not sure what measures we can take. We've told the employee to report the customer to police. To what extent are we responsible for dealing with the situation? How much liability does an employer have for a customer?

Answer: The extent to which an employer is responsible for preventing harassment of an employee by a customer usually arises in the context of sexual harassment, but the issue of racially-motivated harassment has also been addressed in some cases. Both constitute discrimination under human rights legislation. Harassment unrelated to prohibited grounds of discrimination has not been addressed, but the case law relating to sexual harassment will give an idea of what steps should be taken when any harassment is occurring.

The responsibilities of an employer in this area can be best summarized by the British Columbia Human Rights Tribunal’s ruling in O’Brien v. Sali:

“An employer may be responsible for discrimination, including sexual harassment, suffered by its employee, even if the perpetrator of that harassment was not its employee. That is because the employer is responsible for maintaining a harassment-free environment for its employees, including preventing harassment from customers, suppliers and the like. An employer is also responsible for responding appropriately to complaints of harassment by its employees.”

An employer is not permitted to shirk responsibility for any sexually or racially motivated harassment of its employee by a customer. This has been clear since this issue first arose in front of a human rights tribunal in Mohammad v. Mariposa Limited Partnership, where an employee reacted to a customer making racially-motivated slurs against her. Both racially and sexually motivated comments were considered fundamentally different than other types of verbal abuse as they were a demeaning practice that was an affront to one’s dignity. These types of comments are outside of what an employee is expected to put up with as part of doing business. Since human rights legislation is meant to protect victims rather than punish the discriminator, it is up to the employer to remedy this discrimination, even when it is a customer it has no control over.

The same conclusion was reached in Guzman v. T., where the employers of a live-in nanny were considered responsible for the sexual harassment of their employee by their son. The employers could not sit idly by and allow the harassment to take place. The board relied on an earlier decision in finding that by their passive inaction of allowing harassment to continue when they could have taken steps to rectify the problem, the employers were, in effect, infringing this right themselves. Moreover, the employer cannot abdicate its responsibilities by leaving it to the employee undergoing the harassment to decide what has to be done, as was ruled in Lanteigne v. Sam’s Sports Bar Ltd.

What has been given very little attention are the proper steps an employer should take to rectify harassment. In Greensides v. Saskatchewan Human Rights Commission, a Saskatchewan Court of Queen’s Bench ruling, a waitress was groped on several occasions by a customer who also happened to be a friend of the manager. The board found (and the court agreed) the employer, by bringing up the incident to the customer well after it took place, did not take sufficient steps. A more appropriate course of action would have been expelling the customer from the bar or, at the very least, warning that continued acts of harassment would result in expulsion. It can be seen from this that the employer is to take action as soon as possible to prevent this harassment from continuing, even at the expense of banishing a customer.

In your case, it would be a good idea to consider what could be done to prevent the harassment. Perhaps the customer could be banned from the store, or, if the customer tends to appear only at certain times, it could be arranged so the employee is not working alone at those times. Allowing the employee to call the police is not sufficient. Though it does demonstrate that you, as an employer, are not dismissive of your employee’s concerns, it also puts the onus of maintaining a harassment-free workplace on the employee. This is not the responsibility of the employee, and furthermore, does not take into account the reluctance a good number of people have to contact the police. More active methods of preventing this harassment will be required to satisfy the employer’s duty to provide a workplace free from discrimination. A passive stance is not going to be a sufficient response to the situation.

For more information see:

O’Brien v. Sali, [2006] B.C.H.R.T.D. No. 443 (B.C. Human Rights Trib.).

Mohammad v. Mariposa Limited Partnership, [1990] B.C.C.H.R.D. No. 39 (B.C. Human Rights Trib.).

Guzman v. T., [1997] B.C.C.H.R.D. No. 1 (B.C. Human Rights Trib.).

Lanteigne v. Sam’s Sports Bar Ltd., [1998] B.C.H.R.T.D. No. 40 (B.C. Human Rights Trib.).

Greensides v. Saskatchewan Human Rights Commission, [1993] S.J. No. 302 (Q.B.).

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected]

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