“Boss, I was sexually harassed by that person from the other company”: when the alleged harasser is not your employee

Many employers are aware of the steps they need to take when their employees are alleged to have committed harassment against colleagues or subordinates. However, when the alleged harasser belongs to another company, perhaps even a decision-maker of a client, some employers may be confused or feel powerless as to whether they can do anything. After all, the employer’s ability to take direct disciplinary action is certainly non-existent if the harasser is not an employee, and many corporate harassment policies do not address this scenario.

In the case of Wamsley v. Ed Green Blueprinting (2010 HRTO 1941), the Human Rights Tribunal of Ontario (HRTO) made findings regarding an employer’s obligations when employees complain of being harassed by third parties:

“An employer has a duty to intervene to stop the harassment of its employees by third parties. This is particularly so when they attend the workplace on a regular basis and impact the work environment. The duty to act applies to a single incident of harassment. The Tribunal has recognized that a single incident, if serious, may meet the definition of harassment.”

In other words, the employer needs to enact all appropriate measures available to address and respond to the harassment allegations. Simply shifting responsibility to another employer demonstrates that harassment prevention and response obligations are not being fulfilled. The response measures taken should be documented as a record of the employer’s efforts to properly deal with the allegations. These can include:

- Reporting the matter to the alleged harasser’s supervisor (or point of contact for that organization) by phone, and then follow up the matter in a registered letter. In the Wamsley case, the HRTO noted that the employer should have proactively notified the third party employer about the harassment allegations instead of waiting for the complainant to file an official complaint. The Tribunal ruled that the employer needs “to realize that it bore the responsibility for dealing with the complaint, not the applicant” (i.e. complainant).

- Assuring the complainant that the employer takes the allegations very seriously. This is recommended for all alleged cases of harassment.

- Where possible, ensuring that the alleged harasser is not allowed to be at the complainant’s work location. The alleged harasser’s organization should be asked to send an alternate representative for future visits. Trespass-to-property provisions should be used if necessary.

- If the alleged harasser’s organization disputes the allegations, the target’s employer can suggest initiating an independent investigation with costs shared in accordance with a written agreement. This can be helpful if there is a need to preserve the working relationship between the two employers, or if the alleged harasser is a corporate decision-maker.

As I discussed before in my information article on responding to “informal” harassment complaints, employers should never say anything that can be interpreted as discouraging or encouraging a complaint, regardless of whether the matter involves third parties. Any discouragement risks being interpreted in a judicial process as the employer not taking harassment complaints seriously. In the Wamsley case mentioned above, the HRTO identified a supervisor’s early attempts to dissuade the complainant from filing an official complaint as of concern, and considered that factor in its decision.

Even if a harassment complaint involves employees belonging to third parties, management representatives and human resources must respond reasonably by taking it seriously, dealing with it promptly, demonstrating care of all employees, investigating objectively where cooperation from the third party is available, and acting appropriately following investigation.

(The above is for general information only and does not necessarily apply to all organizations. For legal advice, please contact your legal counsel.)

Return to the list of Information Articles.

Return to Home Page.

Contact Me.