On March 6, 2015, the Ontario Government published its plan
aimed at addressing sexual violence and harassment in
Ontario. The document is titled, "
It's Never Okay: An Action Plan to Stop Sexual Violence and
Harassment" (the "Action Plan"). The
Action Plan has a lot to say about a very important subject and I
encourage readers to review the entire document. This post
though is limited to the Government's recommended
changes to the Occupational Health and Safety Act
("OHSA") to deal with workplace sexual harassment.
Employers are already obligated to create a workplace harassment
policy and to investigate harassment complaints under the Human
Rights Code (the "Code") and OHSA.
Readers may recall that these OHSA obligations were
introduced five years ago, under legislation commonly known as Bill
168. Amongst other things, Bill 168 imposed an obligation on
employers to create workplace violence and harassment policies and
programs, implement a complaint procedure, investigate
complaints, and to undertake workplace violence risk assessments
and warn employees of certain individuals with a violent
The Action Plan is proposing further changes to
OHSA that would provide additional and specific
obligations in relation to "sexual harassment".
Specifically defining "sexual harassment" under
OHSA. Currently, a definition of "sexual
harassment" is present in the Code but not OHSA.
However, OHSA does regulate "workplace harassment"
and that is defined as "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."
Explicitly requiring employers to investigate and address
workplace harassment, including sexual harassment complaints in the
workplace. Currently, employers have this obligation under
the Code. While there is a general obligation to investigate
"workplace harassment" under OHSA, the Government is
likely seeking to clarify that the same obligations apply to
sexual harassment. In short, the Government is aiming
to specifically confirm that sexual harassment is not only a
human rights issue in the workplace but a workplace safety issue as
Explicitly imposing an obligation on employers to make
every reasonable effort to protect workers from harassment,
including sexual harassment, in the workplace. Currently,
section 25(2)(h) of OHSA states that employers are to take
"every reasonable precaution in the circumstances for the
protection of the worker." Section 32.0.5 of
OHSA states that "for greater certainty" this
general prohibition applies with respect to "workplace
violence". There is no similar section in OHSA for
"workplace harassment". In other words, there is
some doubt as to whether the general obligation to
take "reasonable precaution" in the workplace
applies to harassment as opposed to violence. The
Government's proposed change would make it very clear that
the general obligation to protect workers would apply to
"sexual harassment" (and likely "workplace
harassment" as well). Again, the Government is aiming to
specifically confirm that sexual harassment is not only a human
rights issue in the workplace but a workplace safety issue as
Creating a new "Code of Practice" for employers
that outlines the steps employers can take to comply with the
Establishing a trained enforcement team of inspectors to
deal with complaints of workplace harassment, including sexual
Developing educational materials for employers.
It is clear from the recommendations that the Government is
focused on making sexual harassment a workplace safety
issue. Should these recommendations turn into
legislative change, employers would have specific obligations
under OHSA in relation to sexual harassment.
The specific OHSA language has not yet been introduced. We
will keep you up-to-date on the implementation of the
Government's Action Plan. Given that this is a key issue
for the Government, we can expect the above changes to occur sooner
rather than later.
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