Employer Can Be Held Liable if Sexual Harasser is Customer or Visitor
Updated: Aug 14, 2020
A survey done by Statistics Canada of survivors of workplace sexual harassment found that a large percentage of them (56%) were harassed by their customers.
The Human Rights Tribunal of Ontario (HRTO) in the case of A. v. C. Food Services, 2010 HRTO 2024 (CanLII), http://canlii.ca/t/2cv4j (anonymized for privacy purposes) found an employer liable for mishandling a complaint by an employee of being sexually harassed by a customer.
Ms. A. was a customer service representative working alone at Tim Horton’s Kiosk within a retail store. A regular customer approached her at the counter and handed her a note that said:
Hi, me the bus guy. You probably figured it out already. You are very attractive, well, i happen to think so. To be honest it’s a sexuall [sic] attraction take this as a compliment. i didn’t want to embaress [sic] you at work so i wrote it all down. Have an awesome day. Take care,
This understandably made Ms. A. feel very uncomfortable and unsafe in her workplace. She reported the incident to management. The manager informed her that the incident was “personal” and admonished her for breaching a store policy by accepting something from a customer other than money. Ms. A. quit her job and brought a human rights application against her employer.
In it’s decision the HRTO found that “the applicant had the right to be free from discrimination or harassment where the perpetrator is a customer”. In determining that the employer was liable for mishandling her complaint the HRTO considered that the employer was aware of the sexual harassment, did not take the complaint seriously enough and had failed to act expeditiously to resolve the complaint.
The moral of this story is that all complaints of workplace sexual harassment, regardless of who the perpetrator is, should be taken seriously by employers and swift action should be taken to ensure the ongoing safety of all staff members.
You can obtain free information and advice about workplace sexual harassment from The Legal Clinic at 613-264-7153. The Legal Clinic is also offering free virtual workshops for employers and managers about how to properly handle sexual harassment complaints and avoid liability.