Following high-profile sexual harassment cases involving public figures, it is not surprising that combating sexual violence and harassment in the workplace has become a priority for the Ontario Government. In March 2015, the Government released its report It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment and, in October 2015, the Government introduced Bill 132 as a legislative response to that report.
On March 8, 2016, Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, (the Act) received royal assent. As a result, various statutes in Ontario will change to better protect individuals from sexual violence and harassment, which in turn will create additional obligations for Ontario employers, landlords and educational institutions. Employers with workers in Ontario should take note as the Act amends the Occupational Health and Safety Act (OHSA) and requires employers to take certain actions by September 8, 2016.
How will the OHSA Change?
In 2010, Bill 168 came into force and obligated employers to create workplace violence and harassment policies and programs, amongst other things, to protect workers. The passage of Bill 132 will build and expand on those obligations to protect workers from sexual harassment as follows:
- Broader Definition: The definition of workplace harassment will broaden to include workplace sexual harassment, defined as follows:
- 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.
- Expanded Program: Employers, in consultation with a joint health and safety committee or health and safety representative, if applicable, will need to make sure their workplace harassment programs are in writing and are expanded to:
- include measures for reporting incidents of workplace harassment to a person other than the employer/supervisor if the employer/supervisor is the alleged harasser;
- detail how incidents or complaints of workplace harassment will be investigated and handled;
- detail how information about an incident or complaint (including identifying information) of workplace harassment will not be disclosed unless disclosure is necessary for the investigation or corrective action, or if required by law; and
- detail how the alleged victim and harasser (if a worker) will be informed of the investigation results and any corrective action arising out of the investigation.
- New Duties: New duties will be imposed on employers to ensure that:
- an investigation is conducted into incidents or complaints of workplace harassment;
- the alleged victim and harasser (if a worker) are informed, in writing, of the investigation results and any corrective action;
- the employer's workplace harassment program is reviewed at least annually; and
- employees receive adequate training about the employer's workplace harassment policy and program.
- Additional Powers: The Ontario Ministry of Labour's inspectors will now have the power to order an employer to use a third party to investigate a workplace harassment incident and to issue a written report, at the employer's expense. To date, no further guidelines have been issued around these powers or how far they extend.
Practical Implications for Ontario Employers
While Ontario's Human Rights Code already contains protections for employers to prevent and protect sexual harassment in the workplace, Bill 132 also clearly makes sexual harassment a workplace safety issue. To be compliant with the new changes, and before September 8, 2016, deadline, employers must:
- Review and update workplace harassment policies and programs to explicitly include the definition of workplace sexual harassment and to reflect the new requirements mandated by Bill 132.
- Put a process in place so that workplace harassment programs are reviewed at least once annually to ensure the employer is effectively implementing all applicable policies.
- Train managers, HR personnel and employees about the new laws and how they will impact the workplace. As part of this training, an employer must ensure that it and its team understand the terms and definitions in the new legislation and referred to in the new legislation. For example, an employer will want to ensure that leaders have sufficient understanding of what gender expression is and how it differs from gender identity in order to effectively understand the nature of any complaint made on that basis.
- Ensure that each harassment complaint is taken seriously and investigated in compliance with Bill 132.
Although Bill 132 has created additional obligations for Ontario employers when it comes to combatting sexual harassment in the workplace, as before, it will not protect employees from discipline for making vexatious or bad faith complaints of sexual harassment.