'A sexual joke – even once – could fall into sexual violence'

With a new regulation in Quebec that establishes sweeping obligations around the prevention, training and handling of complaints related to sexual violence in the workplace, legal experts are advising employers to take heed of the scope of those obligations.

The regulation approved by the Quebec government on May 13, 2026, was adopted under Bill 42 — the Act to Prevent and Fight Psychological Harassment and Sexual Violence in the Workplace, which received assent in March 2024.

"In the past, the Quebec government put in place obligations for psychological harassment and sexual harassment," says Marie-Gabrielle Bélanger, partner at Fasken in Montreal. "Now, they're saying sexual violence is equally important… sexual violence is different from harassment.”

Lower threshold than harassment

One of the most consequential aspects of the new framework is the definition of "sexual violence" itself: "Any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity."

Sexual violence would not always fall into the definition of harassment because there are criteria for harassment in Quebec — “it has to be repeated, hostile and unwanted," says Bélanger. "Sexual violence has a very broad definition. So, a situation could fall into sexual violence but not fall into harassment."

She admits that it’s not yet clear how this will be interpreted by the tribunal, “but if we read the definition very strictly, a sexual joke — even once — could fall into sexual violence because it's a misconduct."

The definition appears to have been influenced by the concept of psychological harassment says Luc-Alexandre LeBlanc, associate at Littler in Montreal — but sexual violence is now expressly recognized as a workplace health and safety issue.

"Certain conduct with sexual connotations may potentially constitute sexual violence even where the threshold for psychological harassment would not necessarily have been met. The focus appears to be less on the severity of the impact on the victim and more on whether the conduct itself falls under the statutory definition of sexual violence."

This suggests a lower threshold for establishing sexual violence, he says, and unlike psychological harassment, sexual violence “does not require proof that the conduct affected the victim's dignity or physical or psychological integrity, or that it resulted in a harmful work environment for the employee.”

Workers’ comp implications

Bill 42 also introduces legal presumptions that make it easier for workers to claim employment injury benefits. Under the amended Act Respecting Industrial Accidents and Occupational Diseases, "a worker's injury or disease is presumed to have arisen out of or in the course of the worker's work when it results from sexual violence suffered by the worker and committed by the worker's employer, any of the employer's executive officers in the case of a legal person or any worker whose services are used by the employer."

A disease arising within three months after the worker suffered sexual violence at the workplace is separately presumed to be an employment injury — and the time limit for filing such a claim has been extended to two years.

“If someone happens to be affected by the joke or any misconduct, it's now easier for employees to claim for employment injury because there's going to be a presumption that this occurred at the workplace,” says Bélanger.

Formal risk identification required

The new regulation requires employers to incorporate sexual violence into their existing prevention programs or action plans — and the risk identification component is probably the hardest part, according to Bélanger, though there’s a similar requirement for sexual and psychological harassment.

“The identification of risk will depend on the workplace. If you have only one or two women in the workplace, that's going to be different than a highly diverse or equal workplace,” she says.

“It's not just about demographics — it's about going further and really examining whether there have been or could be potential actions, comments, or behaviours that occur repeatedly in the workplace and that could lead to a complaint.”

Employers cannot satisfy this obligation with a cursory internal review. The regulation requires that employers send all workers written information covering, among other things, "the risks that have been identified or, where applicable, analyzed" and "the measures provided for in the employer's prevention program or action plan that make it possible to eliminate or, failing that, control the identified risks."

Depending on the employer's size, this risk identification will need to be formally approved by a health and safety committee.

"It's not like you just think about it and identify the risks — it's truly a formal assessment that employers will have to conduct," says Bélanger.

Periodic risk assessments needed

Analyzing risks always depends on various factors — the company's sector, the nature of its activities and the size of the organization — says LeBlanc, who advises employers to document and analyze a range of factors, including power imbalances, customer-facing positions, high-conflict or stressful work environments, and past incidents that have led to complaints.

"Employers should at a minimum document and analyze factors that contribute to psychological risks or sexual violence," he says. "They should also identify examples of past incidents that have led to psychological or sexual harassment complaints, and train employees in identifying such risks."

Critically, compliance is not a one-time exercise.

"As an organization evolves, so do its operations — work arrangements, technologies and workforce composition — and psychological risks may change along with them," LeBlanc notes. "Employers should periodically reassess whether their prevention and intervention measures remain appropriate given their current reality."

Beyond 4 four walls of workplace

The regulation is explicit about the territorial scope of these obligations “both inside and outside the workplace.”

The reach extends to informal gatherings as well.

"Social activities, even those not officially organized by the employer — for example, if a director or supervisor invites some people to their home for Friday drinks — could fall into it," says Bélanger.

"If something happens and it then has an impact in the workplace — the person feels unsafe, doesn't want to come to work anymore — they can claim sexual or psychological harassment and argue it was work-related."

Digital communication in Quebec

Digital communications present a similar challenge as the regulations mentions “technological means” as a further area of consideration. LeBlanc notes that Bill 42 contains no limitation on communication channels, meaning conduct on personal social media platforms can fall within scope where there is a sufficient connection to the workplace.

The regulation requires that employers address "the social interactions that could result in sexual violence" in their written communications to workers — which could encompass Teams chats, group texts and social media posts.

"An employer's obligation to prevent violence may extend to conduct occurring on personal social media platforms when the conduct is linked to the workplace or arises out of the employment relationship," says LeBlanc.

Bélanger echoes the concern: "A conversation in a small group chat about a colleague who isn't in that chat can still have an impact if it gets back to that person."

Third parties: same standard applies

Another departure from the existing harassment framework is the explicit treatment of third parties. Under Bill 42, the amended Act Respecting Labour Standards requires that employers prevent psychological harassment "from any person" which could include contractors, clients, vendors, agency workers, interns and delivery personnel alike.

Ultimately, the extent to which the legislation applies to a particular individual will depend on the context and the nature of the relationship with the employer, says LeBlanc: “That's the key takeaway.”

Employers should treat sexual violence allegations involving third parties the same way they would if the allegations were against one of their own employees, he says.

"Employers should investigate the complaints, assess the allegations, gather all relevant facts, implement protective measures, document all findings, restrict access of offending parties and, when necessary, inform the third-party's employer."

The remedies available when the offender is an external person are different — an employer cannot discipline a contractor the way it would an employee — but it can ask that the person no longer comes into the workplace, cut a contract or take other measures, says Bélanger.

"Of course, employers will want to preserve relationships if it's an important client or contractor, which can make things harder — but they still have to act."

In sensitive situations, both lawyers recommend engaging a third-party investigator.

Training: mandatory and recurring

The regulation sets specific training requirements. All workers must receive training on the prevention of sexual violence, and that training must be repeated every three years. The required subjects include the definition of sexual violence, the types of conduct that could occur in the workplace, the effects on victims, the obligations of employers and workers, available resources and recourses, and — notably — "the good practices applicable when a person is a witness to or has knowledge of sexual violence in the workplace," as the regulation puts it.

Qualification requirements for instructors are also prescribed. The regulation states that the training instructor "must, by reason of that person's knowledge, training or experience, be able to identify and analyze the risks related to sexual violence in the workplace" — a requirement that effectively rules out ad hoc internal sessions without qualified facilitation.

The training obligations under sections 4 to 6 of the regulation do not come into force until May 27, 2028 — one year after the rest of the regulation.

Handling complaints properly

On the complaints side, the regulation requires employers to establish a written procedure specifying "the steps to file a complaint or report sexual violence and how to manage such a complaint or report," and to make that procedure available in the workplace. Workers have the right to be accompanied by a person of their choosing.

Employers must designate a person to manage complaints, and that person must carry out their duties "impartially" and have "the necessary knowledge and skills to manage such complaints or reports," as the regulation states.

Measures must also be taken so the management of a complaint or report doesn’t result in additional risks such as “secondary victimization."

Bélanger flags this as an area requiring careful judgment.

"If a complaint has no reasonable chance of success and isn't even admissible on its face, and you go ahead and meet with the complainant once and then involve witnesses, the respondent could turn around and say, 'You investigated something you should never have pursued, and now witnesses are aware of this complaint and it has damaged my reputation.'"

That doesn't mean HR can't take other steps if there are other concerns, “but if there's no harassment on its face, you don't pursue a harassment investigation,” she says.

One policy, not two

On the question of policy structure, both lawyers lean toward integration rather than proliferation.

"My recommendation is not to create two separate policies," says Bélanger. "Instead, update the existing policy to make sure the definition of sexual violence is included, and that training, prevention and how sexual violence complaints will be handled are all addressed — integrated alongside what was already there for psychological harassment."

LeBlanc agrees, while noting the choice ultimately belongs to the employer. What matters most, he says, is content. Bill 42 sets out a specific list of what the policy must include, among them:

• the methods and techniques used to identify, control and eliminate the risks of psychological harassment
• the specific information and training programs on psychological harassment prevention
• recommendations on behaviour to adopt when participating in work-related social activities
• the measures to ensure the confidentiality of complaints, reports information or documents received.

"With Bill 42, there is mandatory content that has to be addressed to ultimately protect employees," says LeBlanc.

Bill 42 also contains a notable provision on disciplinary history. Under the new Chapter IV.1 of the Act Respecting Labour Standards, no agreement or collective agreement can prevent an employer from taking into account a previously imposed disciplinary measure when dealing with a new incident of physical, psychological or sexual violence. In other words, prior misconduct cannot be contractually erased.

More guidance to come

LeBlanc cautions that the practical meaning of many provisions is still taking shape.

"We're still at the very early stages of understanding the full practical impact of these new obligations. There will certainly be decisions coming in the upcoming weeks, months and years,” he says, citing la Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST), the Administrative Labour Tribunal, arbitrators, and various courts “that will provide guidance on the scope of employer responsibilities."

LeBlanc’s closing advice is to start now, think broadly and not underestimate what's required.

"Bill 42 and the accompanying regulation represent a shift toward a more integrated approach to workplace health, safety and respect. They recognize psychological risks and sexual violence as organizational risks that require the same level of attention and diligence as traditional occupational health and safety hazards."

The regulation comes into force on May 27, 2027, with training provisions under sections 4 to 6 following on May 27, 2028.