Workplace sexual assault and harassment has been grabbing headlines for many years. It has been reported that many of our public institutions, including the RCMP and our armed forces, are dealing with a high incidence of such complaints.
As we all know, sexual assault and sexual harassment can happen in any workplace. And when it does, the costs to employers can be staggering: employers may be the subject of a legal action or complaint, lose one or more employees involved in the incident, suffer a loss of productivity due to low employee morale and/or suffer reputational damage. The latter points, in particular, make it difficult to retain and attract good employees. Of course, the impact on victims is often beyond monetary consideration.
In an effort to prevent sexual assault and harassment, and to better support its victims, the Ontario government introduced Bill 132 in 2015. Aptly named the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), the provisions of Bill 132 came into force on September 8, 2016. While this blog post is focused on workplace matters, it is important to note that Bill 132 also governs various other aspects of society. For instance, there have been new changes to the Residential Tenancies Act, 2006, permitting victims of violence or abuse to terminate a lease on shorter notice than would otherwise be permissible. As well, amendments have been made to the Ministry of Training, Colleges and Universities Act, requiring post-secondary institutions to take measures to prevent and address sexual violence with respect to students.
When it comes to the workplace, the effect of Bill 132 is to expand on the workplace violence and harassment framework already contained in Ontario’s Occupational Health and Safety Act (the “OHSA”). Most readers will recall that this framework originated from Bill 168, which came into force in June 2010, and mandated employers to develop policies and programs to deal with workplace violence and harassment. The Ontario government accomplished this noble endeavour by expanding the duties and obligations already placed on employers, supervisors and workers in the OHSA. Because of Bill 168, the OHSA now requires employers to treat the risk of violence and harassment against workers like other workplace hazards, which must be foreseen and minimized, and which must be governed by incident action plans. All Ontario workplaces are governed by this scheme.
The only Bill 132 provision dealing uniquely with sexual misconduct is found in the new definition of “workplace harassment”, which now includes “workplace sexual harassment”. “Workplace sexual harassment” has been discretely defined in the definitions section of the OHSA as follows:
(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 expression, 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;
The other amendments to the OHSA, which are found mainly in the workplace violence and harassment framework (Part III.0.1), apply broadly to all types of harassment, but also clearly cover situations of sexual harassment given the new definitions described above. Both employers and employees should be familiar with these amendments. For ease of reference, they are summarized as follows:
- Employers must now consult with the employees (usually through the Joint Health and Safety Committee) in the development of the workplace harassment policy/program.
- Employers are mandated to have a mechanism for complaints to be made where the complaint would be against an employee’s superior(s) (this must be set out in the program/policy). In addition, Ministry of Labour inspectors can order that investigations be carried out by third parties at the employer’s expense.
- Measures must be taken to limit the disclosure of information learned during an investigation, except for the purposes of carrying out the investigation or taking corrective action (this must be set out in the program/policy).
- The alleged victim and the alleged harasser (if an employee) must be advised in writing of the results of an investigation and of any corrective action taken. The program/policy must provide for how this will be accomplished.
- The workplace harassment “program” must be reviewed at least annually (more often if reasonably necessary), like the workplace harassment “policy”.
- Workers must be educated on the workplace harassment policy and program (similar to the obligation for workplace violence).
- A new provision has been added (subsection 1(4)) clarifying that not all instances of unwelcome communications from management are considered “workplace harassment”. While this provision does not appear to be linked to the intent of Bill 132, it is likely the government wanted to add balance to the workplace harassment scheme. The new subsection 1(4) provides as follows:
A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
Employers should already be compliant with these new amendments to the OHSA. If your workplace policies have not yet been updated, we can help. Please contact our Employment Law Group for more information and to learn about our services.