The Duty to Provide a Harassment-Free Work Environment

This article examines how a positive duty to provide a work environment free from sexual harassment can be constructed from the general obligations that apply with respect to maintaining and ensuring a healthy and safe work environment. It looks at the manner in which the duty has been interpreted as a positive obligation in the anti-discrimination context, and at how a positive duty can also be constructed from the common law duty to take reasonable care and the statutory formulation of this duty pursuant to occupational health and safety legislation. The relief pro vided by the new federal unlawful termination regime in the event of a dismissal as a consequence of harassment is also examined. The article considers the remedial consequences that flow from the potential application of each of these regulatory structures and their ability to address the structural nature of the problem. The article concludes that the regulatory framework with the most potential to facili tate workplace change is occupational health and safety.