As Ontario continues to toughen its laws with respect to sexual violence and harassment, employers may soon have to review andrevise their workplace harassment policies.
On Tuesday, Oct. 27, 2015, Ontario’s Liberal government proposed legislation designed to reduce the threat of sexual violence and harassment and strengthen support for survivors.
The proposed Sexual Violence and Harassment Action Plan Act is part of the government’s three-year, $41-million “It’s Never Okay” plan. The campaign, designed to stop sexual violence and harassment, has garnered significant attention through its use of high-profile television ads and the social media hashtag #whowillyouhelp.
If passed, the act would amend several existing laws, removing limitation periods for civil proceedings related to sexual assault, requiring colleges and universities to have stand-alone policies with respect to sexual violence, and empowering tenants to end their leases prematurely to escape violence, amongst other measures.
The proposed act would not dramatically change employers’ responsibilities with respect to sexual harassment, but would concretize what is expected of employers in this regard. The government is sending a clear message that general anti-harassment policies will no longer be enough. Employers must invest the time and, if necessary, the money into crafting and enforcing appropriate measures that specifically target sexual harassment in the workplace.
Clarity of definition
Until now, the Ontario Occupational Health and Safety Act (OHSA) has not explicitly mentioned sexual harassment, but has instead simply prohibited “workplace harassment” generally. The current definition of workplace harassment is not tied to personal characteristics such as sex, sexual orientation or other protected grounds under human rights legislation, though it is arguably broad enough to include sexual harassment.
Should the new act become legislation, the definition of workplace harassment would be amended to specifically include workplace sexual harassment. Workplace sexual harassment would be defined as “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 or comment or conduct is known or ought reasonably to be known to be unwelcome.”
Workplace sexual harassment would also include sexual solicitations or advances where the person making the advance is in a position to confer, grant or deny a benefit or advancement to the employee.
In practice, the explicit mention of sexual harassment in the OHSA may not have a substantial impact on employers, many of whom have already interpreted their duties under the OHSA with respect to workplace harassment to include sexual harassment.
However, optically, the inclusion of sexual harassment in the OHSA would send the message that sexual harassment is something quite apart from other types of personal harassment that may occur in the workplace and thereby requires employers’ independent attention. The act signals to employers that they can no longer consider sexual harassment in a cursory way as part of their general duty to protect workers from all types of harassment. Employers would be advised to independently consider sexual harassment and to develop specific policies and programs in this respect.
Enhancing employers’ duties to prevent and investigate harassment
The act would also enhance employers’ responsibilities with respect to preventing and investigating all claims of workplace harassment.
Given the proposed inclusion of sexual harassment in the definition of workplace harassment, each of these new duties would apply both to complaints of general workplace harassment and to sexual harassment.
Currently, employers’ obligations under the OHSA include:
• Developing a written workplace violence and harassment policy and reviewing it at least annually
• Developing a program to implement that written policy, including a procedure for workers to report incidents of harassment and the way in which these complaints will be investigated
• Providing training to workers on both the anti-harassment policy and program.
If passed, the act would go a step further in mandating the content of the workplace harassment policy. In addition to satisfying the requirements under the current OHSA, an anti-harassment policy would also be required to include:
• A procedure for an employee to make a complaint to someone other than her employer or supervisor if that person is her alleged harasser
• An explicit assurance that information related to the complaint will be confidential, unless disclosure is necessary to investigate or take corrective action, or is otherwise required by law
• Details of how the complainant will be informed of the results of the investigation and any corrective action that has or will be taken as a result.
The act would also require employers to investigate incidents or complaints of harassment and to inform the affected worker of the outcome. Curiously, the current OHSA does not explicitly include a duty to investigate complaints. As a result of this proposed amendment, employers who failed to adequately investigate complaints could be fined for a violation of the OHSA, in addition to being held liable for civil damages by a court or the province’s human rights tribunal.
New remedy available: inspector-mandated investigations
If passed, the act would empower an OHSA inspector to order that an employer hire a qualified, impartial third party to investigate an incident or complaint of workplace harassment.
The investigation would be at the employer’s expense and would have to culminate in a written report. An inspector-mandated investigation would not waive the employer’s responsibility to undertake the annual review of its anti-harassment policy already required by the OHSA.
Inspectors would be permitted to determine the qualifications required of the independent investigator in each instance. This suggests, for example, that an inspector may require an investigator to have experience related to sexual harassment, should that be the basis of the complaint.
The availability of this new remedy, and the costs that would flow from hiring a workplace investigator, are clear incentives for employers to be proactive both in creating a workplace that is free from sexual harassment and in fashioning an effective means of investigating internally should a complaint arise.
Advice for employers: Stay ahead of the curve
It remains to be seen whether, and when, the proposed act will be passed. Members of the opposition have reportedly been critical of the bill, in part because it was introduced just one month before a committee of MPPs is expected to release its report on sexual violence and harassment. Only time will tell whether the legislation will pass and, if so, whether it will retain all of the provisions that have been proposed by the Liberal government.
The introduction of the act nevertheless signals that the prevention of sexual harassment has become a province-wide priority, with significant amounts of money being invested into related initiatives. Coupled with recent high-profile Human Rights Tribunal and civil decisions that have awarded victims of sexual harassment and assault damages in the hundreds of thousands, a clear message is being sent to employers that sexual harassment will not be tolerated.
Irrespective of whether the act is ultimately passed, now is a good opportunity for employers to be proactive in reviewing their workplace harassment policies and programs and considering how they can be improved upon. Employers are already required to review their programs and policies on an annual basis.
Ontario employers must remember that the OHSA mandates only the bare minimum of what should be included in an effective policy and program. Like all workplace policies, anti-harassment measures must be tailored to each individual workplace and require a significant amount of employee feedback and finessing before they achieve widespread acceptance and effectiveness in the workplace.
As we await the fate of the act, employers have ample time to get ahead of the curve by consulting counsel and continuing to develop and implement strong anti-harassment policies and programs.
Kristen Pennington is an employment and human rights lawyer at Grosman, Grosman & Gale LLP in Toronto. She is passionate about making workplaces safer and free of discrimination. Follow her on Twitter @klpennington or at www.grosman.com.