This article is by Cristina Lavecchia, Editor, HRinfodesk, published by First Reference Inc.
Sexual harassment in the workplace can be toxic, and it is an issue that can have a profound effect on both an employer and their employees.
In response to this issue, on October 27, 2015, the Ontario government introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (“Bill 132”).
If Bill 132 is passed, it would amend various statutes with respect to sexual violence, sexual harassment, domestic violence and other forms of abuse.
As an employer, the following statutes would be of interest:
The Occupational Health and Safety Act: A definition of “workplace sexual harassment” will be included, and the definition of “workplace harassment” will be revised to include workplace sexual harassment. The Act will also increase an employer’s requirement to improve upon and/or implement a workplace sexual harassment prevention program, and with respect to investigations of workplace harassment, it will impose particular duties on employers.
The Limitations Act, 2002: There would be no limitation period with respect to proceedings based on sexual assault or, in specified circumstances, on other misconduct of a sexual nature or on assault. This would allow cases to be brought forth at any time, subject to some exceptions.
The Ministry of Training, Colleges and Universities Act: Colleges and universities would be required to have a sexual violence policy that sets out the process that would be applicable when incidents and complaints of sexual violence are reported. Student input must be considered, sexual violence policies must be reviewed at least once every three years, and data such as the number of reported incidents and complaints of sexual violence reported by students and the implementation and effectiveness of the sexual violence policy collected from its students and other persons must be provided to the Minister as may be requested.
Responsibilities of employers regarding sexual harassment
As an employer in Ontario, when handling the issue of sexual harassment in the workplace, Ontario’s Human Rights Code (the “Code”) and in the near future, the Occupational Health and Safety Act (the “Act”), are two major legislation that must be complied with when dealing with sexual harassment issues.
1. The Code:
The Code prohibits sexual harassment in the workplace.
According to the Code, sexual harassment is considered “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Sexual harassment, whether physical, graphic or verbal, includes:
In the news: In June 2015, Kate Burnham, a Toronto pastry chef, filed a complaint with the Human Rights Tribunal of Ontario (the “Tribunal”), against her former employer, Weslodge. Burnham claims that she was sexually harassed on a daily basis for two years; she had images of male genitalia drawn on her work station and was groped.
In some instances, one incident alone could be serious enough to be sexual harassment.
Applying case law: In the matter of Romano v. 1577118 Ontario Inc., the Tribunal found that a single incident where a male employer had inquired about a female employee’s preferred sex position was sufficient to establish sexual harassment.
2. The Act:
The Act prohibits harassment in the workplace.
Important changes: On March 6, 2015, Premier Kathleen Wynne introduced: “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Plan”). This plan is a step in response to the issue of sexual harassment and violence. On October 27, 2015, as previously stated, Bill 132 was introduced. This Bill is an additional step taken by the Ontario government to execute the Plan.
The Plan and Bill 132 proposes the following changes:
- To include a definition of “workplace sexual harassment,” and clarifies that the definition of “workplace harassment” includes workplace sexual harassment.
“workplace harassment”: (a) 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 (b) workplace sexual harassment.
“workplace sexual harassment”: (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.
Currently, the Act defines “workplace harassment,” not “sexual harassment.”
- The explicit requirement for employers to investigate and address workplace harassment, including sexual harassment complaints in the workplace.
Bill 132 sets out how incidents or complaints of workplace harassment will be investigated and dealt with.
For instance, any information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and the worker who has allegedly experienced workplace harassment and the alleged harasser will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.
Currently, the Act does not specify an employer’s requirement to investigate and address with respect to sexual harassment.
- The explicit obligation for employers to make every reasonable effort to protect workers from harassment, including sexual harassment in the workplace.
For instance, an employer must review its harassment program at least once a year to ensure that it adequately implements the policy with respect to workplace harassment required under the Act.
Currently, the obligation to protect workers is understood to apply solely to “workplace violence.”
Important date: The proposed changes would take effect on July 1, 2016, or six months after the day Bill 132 receives Royal Assent, whichever is later. Therefore, as an employer, you will have a minimum of six months to comply with the Bill.
Preventing and responding to sexual harassment
Employers in Ontario have a legal duty to take steps to prevent and respond to sexual harassment.
Employers can prevent cases of sexual harassment by:
- Implementing a clear and comprehensive written and published anti-sexual harassment policy, and ensure that all employees obtain a copy of the same;
- Ensuring that employees are aware of their rights and responsibilities to not engage in harassment, and the consequences of any misbehaviour; and
- Training employees in positions of responsibility on the anti-sexual harassment policy, as well as their human rights obligations.
Maintaining a work environment that is free from sexual harassment is important. An employer should consistently monitor the workplace to ensure that sexual harassment is not present.
When assessing whether an employer is reasonable in their response to address a complaint of sexual harassment by an employee, the Tribunal will consider:
- Whether the organization responded to the complaint in a quick manner;
- The procedures in place at the time to handle the sexual harassment complaint;
- Whether the complaint was handled seriously;
- The resources made available to handle the complaint;
- Whether the organization provided a healthy environment for the person who complained; and
- How well management communicated its actions to the complainant.
Social media, the game changer: Recently, the public has come to see that workplace harassment rules extend beyond the workplace environment.
Earlier this year, female CityNews reporter, Shauna Hunt, was interviewing fans at a Toronto FC game, when two men made offensive, sex-specific remarks to her. Not long after the encounter aired, details of the two men were circulated on social media. Due to the enormous amount of media attention, the employers of the two men were forced to address the situation. One employer terminated its employee, while the other released a statement that they would be “addressing” the situation.
Employers that fail to take precautionary measures to prevent and address sexual harassment can face multiple issues in the workplace, such as decreased productivity, low morale, increased absenteeism, health care costs, as well as prospective legal liability and expenses.
An update: the employee fired over harassment claims towards the reporter filed a grievance and won. He has been reinstated in his position.
Liability, remedies and assessment of damages
Employers have a legal duty to prevent and remedy incidents of sexual harassment.
- Vicarious liability
Section 46.3 of the Code allows for an employer to become vicariously liable for any act or thing done or omitted to be done by an officer, official, employee or agent of a corporation. Although the vicarious liability provision does not apply to harassment in employment, there is long-established case law of the Tribunal which supports that liability for harassment by an employee can be imposed on an organization respondent where the harassing employee forms part of the “directing mind” of the organization respondent, on the basis of the “organic theory of corporate liability.”
The “organic theory of corporate liability” establishes that an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment. Managers and central decision makers of an organization are a part of the “directing mind.” An employee with only supervisory authority may also be considered a part of the “directing mind” if they function, or are seen to function, as a representative of the organization.
- Establishing a case of sexual harassment
A case of sexual harassment must first be established.
Applying case law: In the matter of Birchall v. Andres, the decision of the Tribunal maintained that the onus is on the employee to prove, on a balance of probabilities, that:
- The individual respondent to the matter is an employer, an employer’s agent or another employee;
- The individual respondent to the matter harassed the applicant by engaging in a course of vexatious comment or conduct towards them, that was known or ought reasonably to have been known to be unwelcome;
- The individual respondent to the matter harassed them in the workplace; and
- The individual respondent to the matter harassed the applicant because of their sex.
- Possible remedies
On an application under Section 46.1 of the Code, the Tribunal may make one or more of the following orders:
- Monetary compensation for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect;
- Restitution, other than monetary compensation; and
- Direct any party to an application to do anything to promote compliance with the Code.
Applying case law: In the matter of Dacosta v. 2383924 Ontario Inc., the decision of the Tribunal assesses the appropriate compensation for injury to dignity, feelings and self-respect.
- The decision considers two main criterions:
- The objective seriousness of the conduct. For instance, the more serious, prolonged and hurtful the comments are, the greater the injury to dignity, feelings and self-respect.
- The effect on the particular applicant who experienced discrimination. When an applicant experiences particular emotional difficulties as a result of the event, and when their particular experience has serious effects, damages will generally be at the high end of the relevant range.
- Damages awarded are on the rise
Damages awarded to employees with respect to sexual harassment have increased.
Applying case law: On May 22, 2015, in the matter of O.P.T. v. Presteve Foods Ltd., an employee was awarded $150,000.00 in general damages.
This recent decision should be an eye opener for employers, and it may be an indication that general damage awards that involve the issue of sexual harassment are on the rise.