Abstract

The current structure of sexual harassment litigation in Canada poses unique issues for Aristotle's distinction between corrective and distributive justice. Due to a series of decisions in the 1980s and 1990s, sexual harassment claims in Canada must be brought exclusively under human rights legislation. This system views sexual harassment as a form of sex discrimination, and roughly subscribes to the view that sexual harassment is an incident of distributive injustice. However, the form of the litigation tends to undermine its distributive justifications. The litigation generally corresponds to the traditional adversarial model, with the complainant seeking damages from the harasser. Consequently, some commentators have argued that sexual harassment should be treated as a private law cause of action, rather than an issue for the human rights system. This article examines the rationale for classifying sexual harassment as an object of corrective or distributive justice, and particularly whether harassment should be viewed as an individual or a group harm. It also addresses the emerging claims for heterosexual male-on-male or bisexual harassment, which create problems for the view that sexual harassment is a form of discrimination "because of sex." Finally, the article explains how the distributive and corrective theories of justice are manifested in the extent of employer liability and the available remedies