Sexual Harassment at Work: More Common Than You Think

by Chantel Goldsmith

Sunday, September 17th, 2017 at 9:03 am

Sexual Harassment at Work: Common in Canada

From Parliament Hill to Mom and Pop Shops, employee claims of sexual harassment are unfortunately much more common than most people realize. The recent resignation of MP Darshan Kang from the Liberal caucus following sexual harassment allegations from two women has brought this matter once again to the light of the media.

Another story involves two servers at a Woodstock, Ontario East Side Mario’s, who quit their full-time jobs in August 2017. Adrienne Young and Megan Cleary told CBC News that they filed sexual harassment complaints with the restaurant’s general manager on July 19, 2017. A few weeks later, they were informed that there wasn’t enough evidence to remove the East Side Mario’s manager.

It wasn’t until CBC News investigated the servers’ allegations that East Side Mario’s and parent company Cara Operations announced that the manager in question had been fired following another investigation. CBC News discovered that the restaurant failed to provide documentation to Young and Cleary explaining the results of the investigation, an action that is required by law in Ontario.

The Angus Reid Institute conducted a Canadian Public Opinion Poll in 2014 of more than 1500 Canadian adults, and found that three-in-ten Canadians (28%) say they have been on the receiving end of unwelcome sexual advances, requests for sexual favours, or sexually-charged talk while on the job. The Poll also found that for one-in-seven adults in this country, the experience has been more intense than innuendo or talk. 14% of those polled said they have experienced anything from sexual touching to more serious unwanted sexual contact in their working lives.

What Ontario’s Laws Say

Employers have an obligation to their employees to maintain a harassment and discrimination free workplace. In Ontario, there are two pieces of legislation that protect employees from Sexual Harassment or violence in the workplace. Section 7(2) and (3) of the Ontario Human Rights Code provides that sexual harassment is a prohibited ground of discrimination based on sex.

Section 7(2) states that an employee has a right to freedom from harassment, no matter their sex, sexual orientation, gender identity or gender expression. This includes inappropriate conduct by both an employer and fellow employee.

Section 7(3) states that an employee or employer cannot make unwelcome sexual advances to a worker while holding a position of power. It also confirms that a worker has a right to be free from a reprisal, or the threat of one, if they reject a superior’s sexual advances.

In The News

Workplace Sexual Harassment Laws Strengthened

Just over one year ago, on September 8, 2016, the amendments to the Ontario Occupational Health and Safety Act (“OHSA”) came into effect, which:

  • Strengthen an employee’s rights to freedom from sexual harassment and violence in the workplace;
  • Give broader authority and investigative powers to the Ministry of Labour with respect to complaints. This includes the ability to order that an employer have a third-party conduct an investigation, at the employer’s expense.
  • Require all provincially regulated employers to have a policy to deal with sexual harassment in the workplace and a duty to review the program as often as necessary, but at least once a year. This is to ensure that the policy is effective.
  • Require all provincially regulated employers to investigate complaints of sexual harassment. The must also ensure the complainant and alleged harasser (if under the employer’s direction) are informed of the results of the investigation and any corrective action, in writing.

The Amendments to the OHSA added a new definition of workplace sexual harassment and clarified that workplace harassment includes sexual harassment. Section 1 of the OHSA explains that sexual harassment means:

  • engaging in unwelcome conduct against a coworker because of sex, sexual orientation, gender identity or gender expression.
  • making a sexual advance when the person making the advance holds a position of power over the victim, and knows that the advance is unwelcome.

Employer Fined $70,000

sexual harassment
An announcement months ago reaffirms how important it is for employers to comply with the above requirements and how costly it can be for the failure to comply.

On February 6, 2017, Justice of the Peace Gerald Ryan fined a security services company $70,000 for failing to comply with orders to develop workplace harassment and violence prevention programs for its workers. In this case, the Ministry of Labour inspector investigated Federal Force Protection Agency (FFPA), determined that FFPA was not compliant with the OHSA, and issued ten orders to FFPA to comply. The Orders required the employer to assess the risks of workplace violence, prepare a policy and develop, maintain and implement a program to deal with it. Information and training of workers about the policy and program must also be provided. The same requirements were ordered for workplace harassment.

The Inspector reattended the workplace to verify the status of the Orders, at which time discovering that seven 7 of the 10 Orders had not been complied with and issued a non-compliance upon FFPA.

Justice of the Peace Gerald Ryan agreed that FFPA had failed to comply with orders issued by a Ministry of Labour inspector and fined the company $10,000 for each count of non-compliance, totalling $70,000. The court also imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act.
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Lessons for Employees

Make Notes. If you are a victim of workplace sexual harassment, make notes of exactly what happened.

Review and File. Review the Employer’s discrimination and harassment policy, and file a formal complaint with your employer.

Seek legal advice before making a formal complaint. Our lawyers have a great deal of experience in handling claims of sexual harassment. If you have been sexually harassed in your workplace, or by a coworker outside of the workplace, we recommend that you consult a lawyer at Samfiru Tumarkin LLP to determine what your next course of action should be.

Lessons for Employers

Have proper procedures in place. Have formal discrimination and harassment policies and procedures in place that are compliant with both the OHSA and the Ontario Human Rights Code. Make sure these are either drafted or reviewed by your legal counsel.

Review annually. Check your policies every year. Make sure your employees are trained on said policies and procedures.

Investigate all complaints. All sexual harassment complaints should be formally investigated.

Provide Results. Ensure the complainant and alleged harasser (if under the employer’s direction) are informed of the results of the investigation and any corrective action. Make sure they get it in writing.

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