Legislative reform regarding sexual harassment – But is it enough?

Ontario and other jurisdictions are bringing in more protection for victims of workplace sexual harassment, but will it encourage them to come forward?

In the post-Ghomeshi world we now live in, one must wonder how the outcome of the sexual assault case involving former CBC employees Jian Ghomeshi and Kathryn Borel will impact the reporting of sexual harassment in workplaces nationwide.

Ghomeshi had his sexual assault charge withdrawn after signing a peace bond on May 11, 2016, and read out an apology saying, in part, the following:

“I now recognize that I crossed boundaries inappropriately. A workplace should not have any sexualized tone. I failed to understand how my words and actions would put a coworker who was younger than me, and in a junior position to mine, in an uncomfortable place.”

 In a statement outside the courthouse, Borel said, in part: “There are at least three documented incidents of physical touching. This includes the one charge he just apologized for. When he came up behind me while I was standing near my desk, put his hands on my hips and rammed his pelvis against my backside over and over simulating sexual intercourse.”

Ghomeshi, in his apology, acknowledged a key issue that many tie to sexual harassment in the workplace: power imbalance. When a victim of sexual harassment is in a subordinate position to his or her harasser, the likelihood of reporting such conduct is, in the view of many, less likely.

The Ontario Government has made the issue of sexual violence and harassment in the workplace a key action item by introducing Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, which received royal assent on March 8, 2016. This act has created new duties and obligations for Ontario employers, landlords and educational institutions to meet in order to better protect individuals from sexual violence and harassment. Amendments to the Occupational Health and Safety Act (OHSA) will be made as a result of this new legislation and requires employers to take action by Sept. 8, 2016. Bill 132 expands the current protections employees have with respect to workplace violence under Bill 168.

Bill 168 came into force in 2010 to protect workers from workplace violence and harassment by creating obligations for employers to create policies and programs to deal with these issues. Bill 132 supercharges the employer’s obligation to protect workers, specifically from sexual harassment. Bill 132 extends the definition of “workplace harassment” in the OHSA 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.

Like many employment lawyers I have seen the spectrum of sexual harassment complaints. They have various manifestations from the seemingly innocuous email to the extremely brazen grope in the office boardroom. Often workplace sexual harassment is not witnessed by anyone other than the two parties involved, making it incredibly difficult to prevent, manage and investigate.

To counter some of the effects of sexual harassment, Bill 132 requires employers to ensure 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

• 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.

Employers will have additional obligations to conduct an investigation into complaints of workplace harassment, that the alleged victim and harasser are informed of the results and of any corrective action, that the employer’s workplace harassment program is reviewed at least annually and that employees receive training on the employer’s program.

Sexual harassment damages increasing

In Ontario, as well as other jurisdictions, the Human Rights Code is another protective piece of legislation under which employees have a right to be free from sexual harassment and sexual advances in the workplace. Until very recently, damages awarded under this statutory regime were historically low. The May 2015 Ontario Human Rights Tribunal decision of T. (O.P.) v. Presteve Foods Ltd. set a high benchmark for damages as a result of sexual solicitations, advances and sexual harassment that created a sexually poisoned work environment for the two applicants, contrary to their rights under the Human Rights Code. The tribunal awarded $150,000 and $50,000 to the applicants, respectively, in damages for injury to dignity, feelings and self respect.

The decision in Presteve lends some serious support to the idea that victims of sexual harassment should come forward, can be found to be credible and obtain significant damages for their mistreatment. That said, the fear of victim blaming still looms and legal protection is not absolute. This is especially so in recent stories regarding allegations of rampant sexual harassment within the ranks of the RCMP and among Ontario MPPs. In both institutions, complaints that employees who have been victims of sexual harassment have effectively been silenced or dissuaded from coming forward with their complaints. Recently, Ontario Premier Kathleen Wynne revealed that a former Liberal MPP was asked to resign in 2013 after sexual harassment allegations were launched against him.

In the decision of Ciardullo v. Premetalco Inc., an executive’s employment as a vice-president, finance, was terminated for cause as a result of allegations of sexual harassment made by an employee. The executive argued that the discovery of the employee was critical to his case while the employer argued that she was a completely inappropriate witness and her examination would be oppressive, since she would be confronted by counsel for her alleged harasser and required to relive experiences that caused her to experience feelings of shame and embarrassment. The judge ruled that an employee had the right to select the accuser as the employer’s representative in the discovery process as he was “entitled to know, to explore, and to test the evidence against him prior to trial”.

Given the obvious fact that a victim will have much of the knowledge required in a claim relating to sexual harassment, it is similarly unequivocal that a victim may be much less likely to come forward with complaints of sexual harassment if he or she is at risk of attending lengthy and emotionally draining examinations that will suddenly reveal his or her identity along with the salacious details surrounding her harassment.

While Bill 132 and the recent increase in tribunal damages may create real dialogue around the sanctions that employers can face in sexual harassment cases, it is the corporate culture in every organization that must be the basis for change for employers to see a true decline in workplace sexual harassment. In the words of Kathryn Borel, after hearing Ghomeshi’s apology: “Up until recently I didn’t even internalize that what he was doing to my body was sexual assault. Because when I went to the CBC for help what I received in return was a directive that, yes he could do this and yes it was my job to let him.”

For Bill 132 and the Human Rights Code in Ontario and similar legislation in other Canadian jurisdictions to protect employees, employees themselves must feel safe to come forward with complaints of sexual harassment. The key to that conversation can only be opened by employers ready and willing to reframe their corporate culture.

For more information see:

T. (O.P.) v. Presteve Foods Ltd., 2015 CarswellOnt 12338 (Ont. Human Rights Trib.).
Ciardullo v. Premetalco Inc. 2009 CarswellOnt 5290 (Ont. Master).

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