Can an Employer Be Responsible for an Employee’s Discriminatory Behaviour?
Can Employers Be Held Responsible for Employee Misconduct?
In numerous circumstances employers need to be cautious regarding the actions of employees. Where an employment relationship exists, employers can be held vicariously liable for the actions of employees under the Ontario Human Rights Code (the “Code”). This means the employer would be held responsible for the wrongful actions of an employee even if the employer did not condone the employee’s actions. This is an implied term of the employment relationship.
In a recent Ontario Human Rights Tribunal (HRTO) decision, the Tribunal found the employer vicariously liable for an employee’s discriminatory comments.
What Happened in the Geddes v. Kuehne + Nagel Inc. Case?
In Geddes v. Kuehne + Nagel Inc., 2024 HRTO 1127, the employee, Ms. Geddes worked for only eight days as a warehouse person for the employer, Kuehne + Nagel Inc. (“Kuehne”), before being dismissed. During her short time, she had a dispute with another employee, Mr. Dietrich-Graham, surrounding safety concerns. In response, he called Ms. Geddes a “bitch”.
After filing a complaint with her supervisor, the employer failed to investigate into the incident. Instead, they terminated Ms. Geddes. She then filed a complaint with the Ministry of Labour, who ordered that the employer investigate into the allegations. The employer subsequently conducted an investigation.
The Ontario Human Rights Tribunal Decision
Ms. Geddes soon brought an application to the HRTO, alleging reprisal and discrimination in employment based on sex, including sexual harassment, contrary to the Code.
The HRTO upheld the complaint in part. The HRTO found that the employer did not meet its duty to provide its employees with a discrimination-free work environment under the Code, this includes the duty to reasonably investigate a discrimination complaint.
The Tribunal found that “bitch” is a derogatory term used to disparage and demean women. As a result, calling Ms. Geddes a “bitch” constituted discrimination based on sex, contrary to Code. Mr. Dietrich-Graham was liable for making the comment.
In addition, the HRTO outlined that section 46.3(1) of the Code imposes vicarious liability on an employer for the actions of its employees in the course of their employment. While there are provisions that exempt employers from vicarious liability for harassment committed by its employees in certain circumstances, “there is no such exemption for discrimination”. The HRTO found that Mr. Dietrich-Graham made the discriminatory remark in the course of his employment, and as the employer failed to investigate, the employer was vicariously liable for his conduct.
Ultimately, HRTO found that the discrimination by Mr. Dietrich-Graham was of a less serious nature and did not amount to sexual harassment. Accordingly, the employer and Mr. Dietrich-Graham were liable to pay $300.00 to Ms. Geddes on account of her injury to dignity, feelings and self-respect.
While the monetary award was not significant, this decision reinforces the potential consequences falling on employers for the actions of employees. If you are asking, can an employer be responsible for an employee’s discriminatory behaviour, this case illustrates very clearly that the answer is yes, it can be. In any instance of potential discrimination, employers are required to investigate under the Code to ensure they are taking all steps to provide all employees with a discrimination-free work environment.
If you would like to get advice on a discrimination matter, please contact Whitten & Lublin online or by phone at (416) 640 2667.
Author – Sophie Teversham