Protect employees from third party harassment, or risk court time

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You’ve heard the air-conditioning technician tell off-colour jokes to your receptionist, but she hasn’t complained and he’s not even your employee. Do you ignore the situation until it goes away, or escalates? Not if you want to avoid court time.

Third-party harassment is a particularly thorny issue, especially if instead of a technician the perpetrator is a highly valued client, but an employer’s obligation to provide a harassment-free and discrimination free workplace remains, regardless of who the guilty party is.

“Employers have to provide harassment free workplaces,” says Filion Wakely Thorup Angeletti associate Brian MacDonald. “The most common case is employee to employee, but the duty is broader than that. It does include third parties -  customers or clients who are on site or technicians.”

In a 2010 case where a Xerox technician “swatted” a female employee’s backside the worker was awarded $5000 because of the company’s failure to deal with it appropriately.

The incident was described by her manager as a “stupid mistake”. Human Rights Tribunal of Ontario vice-chair Jennifer Scott said: “It is hard to understand how physically touching a woman’s buttocks can be characterized in this way and it demonstrates a lack of understanding regarding sexual harassment and its impact on women.”

“There’s no hard and fast rule. You’ve got to conduct an investigation to figure out what happened, that’s absolutely necessary.” MacDonald says. “You have to do it in good faith and protecting the person involved.”

While in some cases separating victim and perpetrator may be sufficient, if doing so would cost the victim in compensation – through loss of commission, for example – then the employee could claim for damages.

Overall it is vital to take every complaint seriously, investigate, and find a solution for the specific situation. In some cases that will mean balancing the needs of the company with the needs of the individual, but an employer’s responsibility to provide a safe workplace and protect their employees remains.

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