Protection Against Sexual Harassment Now Covered Under OHSA

On March 8, 2016, the Ontario government gave royal assent to the Sexual Violence and Harassment Action Plan Act (Bill 132) to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and other forms of abuse. The Act aims to make workplaces, campuses and communities safer and more responsive to the needs of survivors and to complaints about sexual violence and harassment.

Let’s examine the Occupational Health and Safety Act changes and new obligations for employers, expected to come into force September 8, 2016.

The new Act expands and adds the following definitions in OHSA:

• To include a definition of “workplace sexual harassment,” and clarifies that the definition of “workplace harassment” includes workplace sexual harassment.
• “Workplace harassment” means: (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” means: (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.

The Act also increases an employer’s requirement to improve upon and/or implement a workplace harassment and sexual harassment prevention program, and with respect to investigations of workplace harassment, it will impose particular duties on employers and includes the following:

• Employers must investigate and address sexual harassment complaints in the workplace. How these incidents or complaints of workplace harassment and sexual harassment are investigated and dealt with are set out in the Act. 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.
• Employers must consult with the joint health and safety committee or a health and safety representative at their workplace, as the case may be, to develop and maintain a written program to implement the workplace harassment policy that includes protection against sexual harassment.
• Employers, in addition to their obligation to protect workers from workplace violence, must 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.

The new Act also clarifies that reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

The provisions of the new Act comes into force on the later of, (a) six months after the day the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 receives Royal Assent; and (b) July 1, 2016.

Therefore, as an employer, you will have a minimum of six months to comply with the Act; not yet confirmed but expected in force date September 8, 2016.

The legislation is one of the 13 commitments within It’s Never Okay action plan, the Ontario government’s $41 million ground-breaking action plan to stop sexual violence and harassment.

What does this means for employers?

Employers in Ontario have a legal duty to take steps to prevent and respond to sexual harassment. As a result of the enactment of the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 , sexual harassment is not only a human rights issue covered by the Human Rights Code, it is also a workplace safety issue covered by OHSA.

Employers have to review and amend their violence prevention program, policies and procedures and training under OHSA to specifically include “workplace sexual harassment”.

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. Workplace sexual harassment must be taken seriously and fully investigated.

All employers will need to train employees to ensure understanding of issues surrounding workplace sexual harassment and the negative impact it can have in the workplace. Employers must ensure that employees are aware of their rights and responsibilities to not engage in harassment, and the consequences of any misbehaviour. They must also train employees in positions of responsibility on the anti-sexual harassment policy, as well as their human rights and health and safety obligations.

But employers must also train management and internal investigators on how to receive and respond to a workplace harassment incident and complaint, conduct investigations, complete reports, and communicate with the parties to a workplace harassment incident or complaint.

When assessing whether an employer is reasonable in their response to address a complaint of sexual harassment by an employee, the Tribunal will consider the current key principles:

• 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.

Other provisions of interest to employers

The Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 also amends the following Acts:

• 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 are required to have a sexual violence policy that sets out the process that will 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. The amendments contain provisions to permit the Minister to conduct, or to direct a college or university to conduct, a survey of students and other persons relating to the effectiveness of the college’s or university’s sexual violence policy, and to require every college and university to provide its board of governors with an annual report setting out data regarding, among other things, the number of incidents and complaints of sexual violence made by students and the programs developed by the college and university to promote awareness of the supports available on these issues. The Private Career Colleges Act, 2005 now contain provisions to permit the Superintendent to conduct, or to direct a private career college to conduct, a survey of students and other persons relating to the effectiveness of the college’s sexual violence policy. The definition of “sexual violence” applicable to community colleges, universities and private career colleges includes an act targeting a person’s gender identity or gender expression.