UPDATE September 8, 2016: Ontario is today introducing the new protections against workplace sexual harassment that will take things to a whole new level. Bill 132: Sexual Violence and Harassment Action Plan Act has become law and expands the meaning of workplace harassment to include sexual violence, sexual harassment, and domestic violence.
While Ontario has had legislation for about 5 years dealing with workplace sexual harassment, the new protections that come into play in September of this year take things to a whole new level.
On September 8 the Occupational Health and Safety Act will be updated (thanks to Bill 132) with a focused definition of what constitutes sexual harassment in the workplace. Every employer, whether they’re a large corporation or a small single store operation, will be required to put in place a policy to deal with any employee complaints.
Bill 132 imposes on employers a proactive duty to protect employees against sexual harassment (instead of just taking measures to remedy a problem once they become aware of it).
This means that employers can no longer assume that things are fine until someone makes a complaint.
In a Canadian study conducted in 2014, it was found that 43% of women and 12% of men claim to have been sexually harassed at a place of employment. Most victims of harassment do not report the incidents to their employer.
Employers should actively encourage everyone in the worklace to bring to the employer’s attention any concerns and all such concerns would have to be dealt with swiftly and decisively.
The fact that the government can now order the employer to hire an outside investigator at the employer’s expense should also add some comfort to complainants that issues that arise will not be swept under the rug.
Overall, this is a very good development in the law.
The following changes have been outlined:
- The definition of “workplace harassment” is being expanded to include (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment. The amendment also specifically notes that a “reasonable action” taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
- “Workplace sexual harassment” is now defined to mean (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expressed, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome. These definitions closely track the definitions in the Ontario Human Rights Code.
- Employers will now be obligated to develop a written program to respond to issues of harassment and sexual harassment in the workplace. Employers must review this program “at least annually” and the program must:
(a) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer, or the supervisor if the employer or the supervisor is the harasser;
(b) set out how incidents or complaints of workplace harassment will be investigated and dealt with;
(c) set out how information obtained about an incident or complaint (including identifying information) will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action or is otherwise required by law; and
(d) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is also a worker for the employer) will be informed of the results of the investigation and of any corrective action that has been taken.
- OHSA will now also require employers to investigate incidents and complaints of workplace harassment in a manner that is “appropriate to the circumstances” and report back on the outcome of that investigation to the complainant.
- Employers must provide training and instruction to their workers on their workplace harassment policy and program.
- The Ministry of Labour will also have the power to order an employer to have an “impartial person possessing such knowledge, experience or qualifications as are specified by the inspector” to conduct an investigation into allegations of workplace harassment and provide a written report of his or her findings. This impartial investigation must be at the employer’s expense.
If you have any questions or concerns regarding these changes to provincial legislation, don’t hesitate to contact Lior Samfiru at Lior@stlawyers.ca or call 1-844-661-9065.