Ontario proposes sexual harassment legislation

Employers face new definitions, investigation rules
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/06/2016

When she was in her 20s, Debora De Angelis said she was sexually harassed at work. Tired of listening to sexually explicit jokes for eight or nine hours a day, she complained to HR. 

But there was no policy and no legislation protecting workers against this kind of behaviour, and De Angelis, now national co-ordinator for strategic campaigns at the United Food and Commercial Workers Union (UFCW) in Toronto, said she was further penalized at work. In the end, the company went under and De Angelis was the first person to be laid off, despite her long service.

“Even by complaining, when you don’t have the proper structure, you’re going to be penalized,” she said.

As a result, De Angelis is encouraged by legislation looking to pass in Ontario as part of the government’s “It’s Never Okay” action plan to change attitudes, improve supports for survivors and make workplaces and campuses safer and more responsive to complaints about sexual violence and harassment. 

The Sexual Violence and Harassment Action Plan Act would amend the Occupational Health and Safety Act (OHSA) to include a definition of workplace sexual harassment, enhance requirements regarding workplace harassment programs and create specific new employer duties to protect workers from workplace harassment, including a duty to ensure incidents and complaints are appropriately investigated. 

High-profile cases such as the Jian Ghomeshi case — which saw the former CBC host charged with sexual assault — really put the issues of sexual violence and harassment on the public’s radar, which prompted the Ontario government to act, said Jed Blackburn, an associate at Cassels Brock Lawyers in Toronto. 

And while amendments were made to the OHSA back in 2010 with respect to workplace harassment, these were fairly general and “did not specifically deal with the issue of sexual harassment,” he said.

“There appears to be this perception that sexual harassment in particular is something that is perhaps being swept under the carpet or not addressed as proactively as it needs to be, versus the more non-sexual types of harassment which might be dealt with in a more direct way.

“So I think the intent of this bill is really to hone in on that issue, make sure employers are more proactive in dealing with it and, frankly, deal with some of the vagueness of the existing legislation.”

The changes won’t hugely extend the practices of employers that are current with the case law and best practices but they do give a couple of things “more statutory oomph,” said Janice Rubin, a partner at Rubin Thomlinson in Toronto.

“The problem clearly continues to persist and this is an attempt to remediate the persistent problem in the workplace. And it’s based on information that was gathered through the hearing process since (Ontario premier) Kathleen Wynne announced her program, the ‘Never Okay’ program, in the spring,” she said.

“The fact of the matter is just because you have a policy doesn’t necessarily mean that people are behaving in accordance with the policy.”

There’s a lot of harassment happening, despite awareness, so the culture isn’t really changing, said De Angelis.

“Only through legislative changes can we sometimes make people feel safer at work,” she said. 

“The fact that now it’s in the Occupational Health and Safety Act, I think, provides a legitimate grounds for women to pursue… This has a little bit more teeth because it’s going to force the employer to take this issue seriously.”

A lot of women will not step forward and complain because they see what happens to others and don’t want to put themselves in that position, said De Angelis.

“The good thing about this legislation is the definition of workplace harassment, sexual harassment, is now written down, so there is something that can be used, some sort of protection that women can have around the terms.”

Overall, this legislation may be the push employers have been waiting for when it comes to changing their culture and being more inclusive and welcoming, said De Angelis.

“Overwhelmingly, this is going to be an economic benefit because violence, harassment, that affects workers’ productivity, sick days, leaving work, quitting, having to train somebody new, so I see this legislation as benefiting everybody, all the parties involved. 

“We’re going to become more aware of what sexual harassment is, we’re going to have policies that are going to help workers and, at the same time, we’re going to have the employer who is going to benefit also economically.”

Definition expanded

In the proposed amendment, the definition of workplace harassment in the OHSA would be substituted with “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” or “workplace sexual harassment.” 

The latter would include vexatious comment or conduct because of sex, sexual orientation, gender identity or gender expression, along with making a sexual solicitation or advance where the person making such a move is in a position to confer, grant or deny a benefit or advancement to the worker and should have known that such behaviour was unwelcome.

The definition is largely consistent with those in the Ontario human rights code, said Blackburn, but “all of the employers’ existing obligations with respect to workplace harassment now have to also include workplace sexual harassment. 

“So if you have a policy in place, which they must have, it will now have to be revisited to ensure it addresses not just broader workplace harassment but also specifically workplace sexual harassment.”

However, the proposed change does state: “A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”

That part speaks to management concerns, according to Blackburn.

“There’s a recognition to the fact that not all comments from employers and managers are going to be welcome or non-critical, as part of the management of the workplace. There will be that need to address issues with employees, and that is not harassment, it’s only going to these other types of vexatious comments and conduct.”

Greater responsibility around investigations

When it comes to investigations, the proposed amendment says these should include measures and procedures for workers to report incidents of harassment to a person other than the employer or supervisor if she is the alleged harasser. 

The employer will also have to set out: how incidents and complaints of harassment will be investigated and dealt with; which information will be disclosed; and how alleged victims and harassers will be informed of the results of the investigation and any corrective action taken.

Employers would also have to conduct an investigation “into incidents and complaints of workplace harassment that is appropriate in the circumstances.”

This is an example of the more specific duties being proposed as “incidents and complaints” was noticeably absent in the prior act, said Blackburn.

“That doesn’t mean it shouldn’t have been conducted as part of a policy, but there wasn’t an express obligation on employers to investigate, so this is (saying) they have to conduct the investigation and it also sets out certain followup steps… so that’s a bit of trend in this proposed bill to more communication and transparency, particularly with the complainant,” he said.

When these changes do become law, it is clear workplace investigations will suddenly become much more important, according to Rubin. And since the act states “incidents and complaints,” it’s not necessarily exclusive to formal complaints under the employer’s policy.

“The folks internally who are responsible for workplace investigations are going to have to understand what triggers a workplace incident,” she said.

“And, second of all, the language here is ‘that is appropriate in the circumstances’ so, again, there’s going to have to be some thought as to what kind of investigations: Is it always formal, is it informal? So, absolutely, if an employer does not now have competent internal people to do their investigations, now is really the time to add those competencies.”

The risk of using somebody who doesn’t know how to conduct an investigation is not theoretical, said Rubin, citing case law over the past 10 years where adjudicators, arbitrators and judges have commented on the lack of skills of internal investigators and, as a result, their imposing liability on the employers.

Third-party involvement

As part of the amendments, an inspector may also order an employer to conduct an investigation, at the expense of the employer, by an impartial, experienced and qualified person.

This part is new and different, yet Bill 132 is not clear as to what those circumstances are, said Rubin, so hopefully there will be more “meat on the bone there” as the regulations are formalized.

“We don’t know how aggressively that power on the part of inspectors is going to be used — is it going to be simply reactively?”

The most imaginable situation would see an employee who has made a complaint to her employer but either the employer didn’t respond, didn’t investigate or responded appropriately, so she calls in the Ministry of Labour, which triggers an inspection, said Rubin. It’s also possible ministry blitzes would lead to investigations being ordered.

To avoid having an independent third party come in and do the investigation, employers should have proper policies in place, said Blackburn.

“Employers who don’t have a very specific policy, who don’t have a very specific investigation process put in place, will have to do a lot more revision than those that have more fulsome policies.”

Significantly, the inspectors can set the qualifications the investigator has to have, said Blackburn, and the employer must pay for the investigation.

“It’s really creating an incentive for employers to ensure that both their policies and their internal investigations are done with an appropriate degree of diligence and thoroughness,” he said, adding a breach of the duty to investigate could be sanctioned under OHSA financially, as well as exposing an employer to other types of legal action.

And proper training will be required for the people conducting investigations, he said.

“That’s an important skill set that will only be increasingly important for HR professionals.”

The changes would also remove the limitation period for civil proceedings based on sexual assault — and, in certain cases, sexual misconduct or assault. 

This could have implications for employers should an employee accuse a co-worker of sexual assault three or four years after the incident, said Rubin.

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