New changes will be coming online in Ontario about sexual harassment and violence in workplaces. They are not yet in effect, but are expected to be the law in mid-2016.
Bill 132 – the Sexual Violence and Harassment Action Plan (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015.
This new law is based on the recent Ontario government report early this year: Its Never Okay: An Action Plan to Stop Sexual Violence and Harassment.
Bill 132 will bring changes to Ontarios Occupational Health and Safety Act (OHSA). They will impact every employer in Ontario, which will need to audit and review their existing policies for harassment and violence in the workplace.
The Current Law
Bill 168 is now in effect in Ontario. It means that employers, under the OHSA, must create and implement workplace violence and harassment policies and procedures, train employees on those, institute an employee complaint process, investigate complaints, conduct workplace violence risk assessments, warn employees of certain individuals if violence is an issue and undertake reasonable steps to protect employees from workplace (including domestic) violence.
Bill 132 is taking workplace violence and harassment another step.
What Will Change?
1. The Definition of Workplace Harassment:
Bill 132 will change definition of workplace harassment to include workplace sexual harassment:
- 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.
Bill 132 suggests that reasonable performance management and direction to workers will not be considered workplace harassment. This is the law in Ontario currently, but affirms that employers can take reasonable steps when facing frivolous harassment complaints from employees who claim a poor performance appraisal constitutes harassment.
2. More Obligations for Workplace Programs and Policies:
Now, the OHSA requires that employers create a workplace harassment program that includes measures and procedures on reporting incidents and investigating and dealing with incidents. Bill 132 would require that the workplace harassment program be expanded to:
- include measures and procedures for workers to report incidents to a person other than his/ her employer/supervisor if that person is the alleged harasser;
- set out how information obtained about an incident or complaint (including any identifying information) will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action or if required by law; and
- set out how the alleged victim and perpetrator (if a worker) will be informed of the results of the investigation and of any corrective action that has been taken as a result of the investigation.
3. New Specific Duties on Employers:
The OHSA does not currently impose specific duties on employers related to workplace harassment, other than creating a policy/procedure and training staff. This is different from the more detailed, specific duties related to workplace violence in the OHSA. This is considered to be a loophole in the law in Ontario.
Bill 132 is aimed at closing this loophold by specifying that in order to protect a worker from workplace harassment, an employer must ensure that:
- an investigation is conducted into incidents and complaints;
- the alleged victim and harasser (if a worker) must be informed in writing of the results of the investigation and any corrective action taken as a result of the investigation; and
- the workplace harassment program is reviewed at least annually to ensure that it adequately implements the employers workplace harassment policy.
4. More Power to the Ministry of Labour (Ontario):
The Ministry of Labour (MOL) will be given more powers, including permitting inspectors to order an employer to investigate a workplace harassment incident and to engage an impartial person (who the inspector believes is qualified) to conduct the investigation and to issue a written report.
The inspector can order that the employer pay the costs involved of engaging the impartial person. This may mean inspector could effectively outsource an investigation to a third party and possibly make the employer pay for the expense to do so. There are no guidelines addressing this in the current version of Bill 132 effectively it is up to the inspector. This is a very important change if Bill 132 is enacted.
What Does this Mean for Employers?
These changes, if passed, will be important.
The definition of workplace harassment will be expanded – employers will need to amend their policies and procedures to specifically include workplace sexual harassment.
Existing workplace harassment policies, procedures and training will need to be audited and improved. Specific duties will need to be considered and, with the new MOL power to order an external party to investigate, this is a clear signal that harassment issues in the workplace must be taken seriously and be fully and properly investigated.
This also means sexual harassment is not only a human rights issue covered by the Human Rights Code, but also a workplace safety issue covered by the OHSA. Therefore, in addition to human rights liability, employers can be exposed to orders, fines and even prosecution. Employers can be charged for their pending and expanded obligations for workplace harassment.
If Bill 132 comes into force (which is expected to be in mid-2016), employers should be prepared by reviewing existing policies and upgrading and revising them to be compliant.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.