Employers in Ontario need to be aware of the continued evolution and expansion of their obligations relating to harassment in the workplace. The issues of sexual harassment and violence are high on the Ontario Government's agenda. In March 2015, the Ontario Government released its report entitled, "It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment". In October 2015, the Government introduced Bill 132 as a legislative response to its report.
Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, proposes to expand employer obligations regarding workplace sexual harassment. Bill 132 expands on the changes implemented in Bill 168 to the Occupational Health and Safety Act ("OHSA"). As readers will recall, Bill 168 came into force five years ago and required employers to draft workplace violence and harassment policies/procedures, provide training to employees about the harassment policies and investigate complaints, among other things.
Bill 132 proposes further changes to OHSA which expand an employer's obligation regarding sexual harassment in the workplace. These changes include:
1) Definition of Workplace Sexual Harassment
The definition of "workplace harassment" in OHSA would be revised to include a definition of "workplace sexual harassment", which would be defined as:
- 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 person knows or ought reasonably know that the comment or conduct is unwelcome; or,
- 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 know that the solicitation or advance is unwelcome.
2) Expansion of Workplace Harassment Policies/Programs
Bill 132 expands the obligations outlined in Bill 168 to require a workplace harassment program that specifies:
- procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
- how complaints will be investigated and dealt with;
- that information obtained about an incident or complaint of workplace harassment will not be disclosed unless the disclosure is necessary for the investigation or corrective action; and,
- how a victim and alleged harasser will be informed of the results of the investigation.
3) New Duties Added to OHSA
Bill 132 imposes statutory duties on employers which differentiates the proposed legislation from Bill 168. These duties under OHSA would require that: an investigation is conducted into complaints of sexual harassment; the victim and alleged harasser be informed in writing of the results of the investigation; and, that the workplace harassment program be revised annually.
Also of note, Bill 132 would provide additional powers to the Ministry of Labour ("MOL"). Specifically, MOL inspectors would be able to order an employer to investigate a workplace harassment incident and to hire an impartial party to investigate the incident at the employer's sole expense. This authority provides significant discretion to an MOL inspector and would result in the employer losing control over the investigation process.
Bill 132 has only passed first reading and as such, is in the early stages of the legislative process. The current proposed date for the changes coming into force is July 1, 2016. We will continue to update you on the progress of this legislation in the coming months.
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.
