Employers are required to deal effectively with workplace
harassment. Historically, individual managers have been liable only
in the worst cases. But a new decision out of the Human Rights
Tribunal of Ontario shows you can't rely on corporate liability
as a shield against personal liability. In Farris v. Staubach Ontario Inc.
(PDF), two manager-owners were held personally liable for failing
to take action against harassment in the workplace.
Katherine Farris worked as a commercial real estate agent for
Staubach Ontario Inc. ("Staubach") for over 9 years. She
was regularly subjected to sexualized comments in the workplace,
including being called a "crazy bitch". Co-workers also
spread a rumour that she was having a sexual relationship with Mr.
McKeague, her manager. As a result, other co-workers presumed Ms.
Farris was receiving favourable treatment and the harassment was
Ms. Farris initially raised concerns in 2001 to Mr. McKeague and
Mr. Leonard, the two manager-owners. In response, the company hired
a psychologist with experience in workplace conflict issues to
investigate and make recommendations. Codes of Conduct were
adopted. But the harassment persisted. Ms. Farris became further
isolated from her colleagues. Ultimately she was terminated on the
basis she did not work well with others.
First Human Rights Tribunal Decision
The Tribunal found that Ms. Farris was subjected to a poisoned
work environment and differential treatment based on sex. The
Tribunal found Staubach liable but not the individual
management-owners. Ms. Farris was awarded $30,000 for injury to
dignity, feelings and self-respect.
But Staubach had been dissolved in 2007 and was therefore unable
Ms. Farris sought judicial review of the decision. The Ontario
Divisional Court decision highlighted two fundamental principles of
human rights law:
A finding of corporate liability is not meant to act as a
shield against finding individual liability; and
The focus of human rights legislation is to provide an
effective remedy to the complainant.
The Court found that the Tribunal's decision was
inconsistent. While the Tribunal found that the manager-owners had
individually violated the Code, it did not find McKeague
and Leonard personally liable.
The Court sent the case back to the Tribunal for
reconsideration. The Tribunal was required to:
consider the need to provide an effective remedy; and
consider the use of the corporation as a shield against
Second Tribunal Decision
Using the criteria set out by the Court, the Tribunal revised
its decision. It found McKeague and Leonard personally liable for
$22,500 of the $30,000 award.
Their personal liability was based on three key findings:
Mr. McKeague and Mr. Leonard were responsible for the creation
of the poisoned work environment;
Mr. McKeague and Mr. Leonard failed to adequately recognize and
respond to Ms. Farris' concerns, which exacerbated the poisoned
work environment; and
The poisoned work environment was a factor in Mr.
McKeague's and Mr. Leonard's decision to terminate Ms.
Employers must keep in mind that the Court and Tribunal accepted
that corporate liability should not be a shield for personal
liability. The door has now been opened wide for further findings
of personal liability of managers in appropriate cases. As such,
individual managers have greater incentive than ever to take
appropriate action to address human rights violations in the
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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