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Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

Sexual Harassment in the Workplace: Not just a human rights issue, but safety as well

Posted in Occupational Health and Safety, Policies
Matthew Demeo

New legislation will require employers to revise their workplace harassment policies, procedures and training by Summer 2016

Earlier this year, we wrote about the Government of Ontario’s plan to address sexual violence and harassment in Ontario.  By way of update, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 proceeded to second reading on December 2, 2015. Having only been introduced a month ago, this indicates that the Ontario Government is quickly moving forward with that plan.

Most important for employers are the amendments to the Occupational Health and Safety Act (“OHSA”) which bolster protections from workplace harassment.  Bill 132  proposes to amend the OHSA definition of “workplace harassment” to include “workplace sexual harassment” which is 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 of comment or conduct is known or ought reasonably to be known to be unwelcome, or
  • 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.[1]

In addition, Bill 132 proposes to add a caveat to the OHSA to clarify that reasonable action taken by an employer or supervisor relating to the management and direction of employees is not workplace harassment.

Further, Bill 132 proposes the imposition of statutory duties upon employers to protect employees from workplace harassment, including:

  • investigating incidents and complaints of workplace harassment;
  • informing the parties to a workplace harassment complaint of the results of the investigation and any corrective action that will occur;
  • developing programs and procedures for employees, which will be reviewed annually, regarding workplace harassment, including:
    • the reporting of incidents;
    • the investigation process;
    • how the investigation information will be kept confidential, except for the purposes of taking corrective action or required by law; and
    • training under the programs and procedures.

Unlike other workplace investigations under the OHSA, the results of a workplace harassment investigation will not have to be shared with the Joint Health and Safety Committee.

Bill 132 also seeks to broaden the powers of Ministry of Labour inspectors and proposes to allow inspectors to require an employer to conduct an impartial investigation into workplace harassment, at the employer’s own expense.

While we have summarized the key employment law changes, it is also important to note that Bill 132 also seeks to (i) require public and private colleges and universities to implement sexual violence policies and procedures; (ii) allow victims of sexual assault or domestic violence to terminate a lease early; and (iii) remove the limitation period for (a) proceedings based on sexual assault and (b) applications for victim compensation for survivors of sexual assault and domestic violence.

We will continue to provide updates as Bill 132 progresses through the Legislature.  In the interim, if you have any questions regarding the proposed changes,  please contact our Labour and Employment Group.

[1] These definitions are similar to what is currently found in the Human Rights Code (Ontario).