The issue of workplace sexual harassment and assault was one of the pivotal points in the U.S. election. This illustrates the sea change in attitudes about sexual harassment since the author joined the workplace over thirty-five years ago, when young female professionals were expected to cope with groping and sexist comments. On the flip side, her daughter has started her working life in a country with a gender-balanced cabinet and expects to be treated with respect.
Not surprisingly, Ontario's laws are trying to catch up to the changing times.
On Sept. 8, 2016, Bill 132 brought in sweeping changes to the Ontario Occupational Health and Safety Act and required employers to be proactive about and responsive to complaints about sexual harassment.
Is your business compliant? Sadly, most Ontario businesses aren't.
Workplace harassment checklist
Here's a handy workplace harassment checklist that we've developed for our clients.
- Update the definition of workplace sexual harassment in your policy. "Workplace sexual harassment" means:
(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.
- If you don't have a policy, draft one. Check the Ministry of Labour's Code of Practice if you don't know where to start.
- Get professional help if you feel overwhelmed.
- Consult with your joint health and safety committee or workplace health and safety representative in order to update (or develop) a written program/plan to implement your workplace harassment policy.
- Post your revised (or new) policy in a conspicuous place.
- Ensure your written program is comprehensive and includes:
- Measures and procedures for reporting incidents of workplace harassment to the employer or supervisor.
- Measures and procedures for reporting incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. We would suggest that the program include an ability for the employee to report the harassment directly to human resources.
- Alternative reporting arrangements to someone who is not under the direct control of the harasser if the incident or complaint involves the employer (owner, director, senior executive. It is unclear at this time if the employer is expected to provide a means of third party contact or even contact information for the Ministry of Labour. As we start to see the effects of the new legislation, third-party contact information may be something the employer will want to consider including. There are many third-party "whistleblower" services that will also deal with complaints of harassment.
- Details on how incidents or complaints of workplace harassment will be investigated and dealt with.
- An explanation of how information obtained about an incident or complaint of workplace harassment will be kept confidential unless disclosure is necessary for the purposes of investigating or as required by law.
- An explanation of how a complainant and respondent (if an employee of the company) will be informed of the results of the investigation and any corrective action taken.
- A commitment to providing a written summary of the results of the investigation and any corrective action taken.
- Train your employees on the contents of the policy and program with respect to workplace harassment; don't expect your employees to understand their obligations and rights by reading a piece of paper.
- Diarize reviews of the program, at least annually.
What about investigations?
When a complaint is received, an employer is expected to investigate the complaint fairly and completely. People need to be trained on investigating complaints and the law of workplace harassment. Make sure your investigator - internal or external - is competent and impartial.
One of the perennial complaints is that the process of complaint investigation and resolution takes too long. The expectation is that most complaints will be investigated and the results communicated within 90 days. While the time period is not a legislative requirement, it clearly sets out the expectation of the parties.
The employer's choice of investigator is not final. One of the most significant changes to OHSA under Bill 132 is that the Ministry of Labour can order that a complaint be investigated by an impartial third party at the expense of the employer.
While we anticipate that this power will be used sparingly and only when the employer's response is inadequate, this is a significant change. Employers can no longer sweep complaints under the proverbial carpet.
This article was written by P.A. Neena Gupta with the assistance of Katelyn Weller. Ms. Gupta and Ms. Weller are lawyers at the international law firm Gowling WLG. Both work within the firm's Employment, Labour & Equalities Group.