Vicarious liability and employment discrimination

Abstract

The issue of employer liability for discriminatory acts committed by employees is complex and contentious. In tort, the established principle is that 'every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's own act' (Bartonshill Coal Co. v. McGuire (1858) 3 Macq 300). This may be justified by the consideration that the employer is the person best able to safeguard against the commission of tortious acts (by increasing safety standards), and the person best able to stand the loss, by insuring against it. It is less certain that the same considerations apply in the context of discrimination law: should an employer be held responsible for what may be individual acts of bias or malice, which the employer may have been powerless to prevent? Or does an employer have a duty to eradicate all expressions of racial or sexual hostility within the workplace? If an employer should be subject to liability at all, what should be the scope of that liability?