The Ontario Government has passed Bill 132, the "Sexual
Violence and Harassment Action Plan Act (Supporting Survivors and
Challenging Sexual Violence and Harassment), 2016". Bill
132 amends the Occupational Health and Safety Act
("OHSA") to add additional obligations on employers with
respect to workplace harassment. A summary of Bill 132's
provisions can be found in my previous article.
For this article, I have focused on five key points that
employers should consider moving forward in advance of Bill
132's effective date (September 8, 2016):
Point #1 – Sexual Harassment is a Health and Safety
With Bill 132, the Government has continued to transform how
sexual harassment is regulated from a pure human rights issue into
a human rights and occupational health and safety issue. Under Bill
132, the definition of "workplace harassment" in OHSA now
includes "workplace sexual harassment". This means that
companies can face liability both under the Human Rights
Code ("Code") and OHSA for sexual harassment in the
Point #2 – Harassment Should be Taken Seriously
As noted above, with Bill 132 employers face potential liability
under 2 separate statutes. An employee can file a complaint of
sexual harassment under the Code with the Human Rights Tribunal
and, at the same time, a company can face a prosecution by the
Ministry of Labour ("MOL"). In other words, the potential
consequences have increased to employers who ignore or do not take
reasonable efforts to prevent harassment at work. Employers need to
be vigilant to ensure a respectful workplace. At the very least,
this means training staff (including management), enforcing
anti-discrimination and harassment policies and taking complaints
seriously. This leads nicely into Point #3.
Point #3 – All Incidents/Complaints Must be
Bill 132 specifies that employers have a duty to investigate
incidents/ complaints of harassment. While this does not mean that
every complaint should go through a week-long investigation (Bill
132 speaks of investigations that are "appropriate in the
circumstances"), it does mean that employers must look into
and deal with all complaints – even those that may seem, at
first glance, as minor or trivial.
Point #4 – Amend Workplace Harassment Program
Currently, employers are only required to have a workplace
harassment program in place that sets out a procedure to report and
investigate complaints. After Bill 132, employers must also ensure
that their workplace harassment program sets out:
Procedures for reporting incidents to
a person other than the complainant's supervisor if that person
is the alleged harasser.
How information obtained about an
incident or complaint will not be disclosed unless disclosure is
necessary for the purposes of investigating or taking correction
How the alleged victim and
perpetrator (if a worker) will be informed of the results of the
investigation and of corrective action.
Notably, this must be set out in writing and be developed in
consultation with the joint health and safety committee (or health
and safety representative). The new, beefed-up, program must be
Point #5 – Beware the Power of the MOL
In an effort to ensure that all complaints are properly
investigated, a MOL inspector can mandate that employers retain an
external investigator to investigate a harassment complaint.
Notably, the external investigator is to be paid for by the
employer and possess qualifications as are specified by the
inspector. There are currently no limits on the inspector's
power or discretion. Accordingly, a lacklustre investigation is
done at the employer's peril. The MOL has the authority to send
in an investigator to ensure that nothing is swept under the
Employers should review the above points, start training staff,
begin to amend their policies/procedures and, indeed, consider
their overall outlook on workplace harassment in advance of Bill
132 coming into effect on September 8, 2016.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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