Employers required to implement prevention program, ensure appropriate investigations
In 2016, news of sexual violence and harassment in workplaces like the CBC and RCMP sparked a national debate in Canada. As of September 8, Bill 132: Sexual Violence and Harassment Action Plan Act becomes law, expanding the meaning of workplace harassment to include sexual violence, sexual harassment, and domestic violence.
According to the Act’s preamble, “All Ontarians would benefit from living without the threat and experience of sexual violence, sexual harassment, domestic violence and other forms of abuse, and all Ontarians have a role to play in stopping them.” This type of legislation is expected to eventually become law across Canada to help ensure workplaces take an active role in protecting workers from the threat of violence, harassment, and sexual harassment.
The definition added to the Occupational Health and Safety Act states “workplace sexual harassment” includes distressing, unwelcome comments or conduct against a worker due to their gender, sexual orientation, gender identity or expression; or any type of sexual solicitation or advance by a person who is in a position of power over the worker, where the person knows or ought to reasonably know the advance is unwelcome.
For employers, Bill 132 presents important workplace-related changes since it requires specific workplace harassment policies and programs are in place and that incidents and complaints are appropriately investigated. Ministry of Labour inspectors will now have the authority to order a third-party investigation at the employer’s expense, especially if the internal investigation is seen to be flawed or incomplete.
What the law says
Effective September 8, 2016, under the Occupational Health and Safety Act, a workplace harassment prevention program must:
- Set out who would investigate if the alleged harasser is the employer. Larger companies may already have their own trained investigators, and smaller companies may need to hire an external investigator.
- Set out how confidentiality will be maintained. Policy must include procedures on how information is obtained during the investigation, including identifying information about any of the individuals involved.
- Provide written results of the investigation to the complainant and alleged harasser. New employer responsibility ensures written results of the investigation are shared with both the complainant and the respondent, including any action taken or to be taken.
New duties for employers
- Appropriate investigation: Ensure an investigation into a workplace harassment complaint is conducted appropriately for the circumstances.
- Provide written results: Ensure the complainant and alleged harasser are informed of the results of the investigation and any corrective action, in writing.
- Minimum annual review: Review the program as often as necessary, but at least once a year, to ensure it adequately implements the workplace harassment policy. More information available on the Ministry of Labour website.
- Gender-related comments about a person’s physical characteristics or mannerisms
- Paternalistic comment or conduct based on gender, which undermines a person’s self-respect or position of responsibility
- Demands for dates or sexual favours
- Unwelcome physical contact
- Suggestive or offensive remarks or innuendoes about members of a specific gender
- Propositions of physical intimacy
- Gender-related verbal abuse, threats or taunting
- Leering or inappropriate staring
- Bragging about sexual prowess or questions or discussions about sexual activities
- Offensive jokes or comments of a sexual nature about an employee or client
- Rough and vulgar humour or language related to gender
- Display of sexually offensive pictures, graffiti or other materials, including through electronic means.
Ontario employers should already have a policy related to Violence and Harassment in the Workplace. (The Ontario Ministry of Labour provides guidelines as well as an example of a Workplace Violence Prevention Policy.) Within their existing policy on the prevention of workplace violence and harassment, the employer would then need to add measures to protect workers from sexual violence and harassment in the workplace.
For more information, contact your Ontario health and safety specialist.
Investigation report from CBC internal investigation is a good example of a thorough workplace investigation regarding sexual harassment.
Upcoming Bill 177: Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act provides leave and accommodation for victims of domestic or sexual violence, and amends Occupational Health and Safety Act in respect of information and instruction concerning domestic and sexual violence.
Workplace harassment definition broadened - Sudbury Star
Workplace harassment definition broadened - North Bay Nugget