In recent years, a number of high-profile cases involving sexual violence and sexual harassment have grabbed the headlines and the public’s attention in Canada. The troubling case of Jian Ghomeshi—and the subsequent investigation at the Canadian Broadcasting Corporation (CBC)—brought this issue squarely into the workplace realm.
In late 2015, the Ontario government tabled Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. This bill was passed in March of 2016 and came into force last September. It builds upon the Bill 168 amendments to the Occupational Health and Safety Act (OHSA) by establishing specific requirements with respect to sexualized harassment and violence prevention, and amends several other statutes with respect to this issue.
Workplace Effects of Bill 132
The primary function and purpose of Bill 132 has been to address and ultimately eliminate workplace sexual violence and harassment. It attempts to do this by requiring workplace programs under the OHSA. The amendments to the OHSA place accountability upon employers to make this goal a health and safety priority.
The key effects of Bill 132 upon the OHSA have been:
- to revise and expand the definition of “workplace harassment” for the purposes of the OHSA to include “workplace sexual harassment”; and
- to place additional obligations upon employers with respect to the prevention of sexual violence and harassment in the workplace.
1. Redefinition of “workplace harassment”
The first critical amendment to the OHSA involves an expansion of the definition of “workplace harassment” to specifically include “workplace sexual harassment.” This change specifically recognizes sexual harassment as an important occupational health and safety issue and operates to entrench it as an independent basis for concern and investigation.
“Workplace sexual harassment” has been 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 course of comment or conduct is known or ought reasonably to be known to be 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 to know that the solicitation or advance is unwelcome.
Bill 132 requires employers to include these new and expanded definitions in workplace harassment policies. Beyond simply providing clearer definitions of important terms, this expansion seeks to elevate dialogue and awareness of sexualized harassment within the important conversations already taking place regarding general workplace violence and harassment.
2. New employer obligations
Further to the enhanced dialogue and awareness referenced above, Bill 132 also requires employers to develop and maintain workplace harassment programs and /policies which must specifically address issues of workplace sexual harassment.
These workplace harassment prevention programs and policies must:
- be developed and maintained in consultation with the employer’s joint health and safety committee or health and safety representative (where applicable);
- include a reporting mechanism for allegations of workplace harassment, including for when the alleged harasser is the employer or supervisor;
- ensure that all complaints and allegations are properly investigated; and
- set out how complainants and respondents will be informed in writing of the results of any investigation and/or corrective action taken.
Bill 132 also provides the Ministry of Labour’s health and safety inspectors with additional powers to enforce the OHSA. For example, an inspector may order an employer to have a third-party investigation and report completed (at the employer’s expense) where there is a complaint or incident of workplace harassment. To assist with compliance, the Ministry has published a Code of Practice, designed to act as an employer’s guide to understanding its new obligations.
Recognizing that these amendments may open the door to significant increases in harassment complaints, Bill 132 also amends the OHSA to include a new employer defence to an unfounded complaint of workplace harassment, providing that “reasonable action” taken by an employer relating to the management and direction of an employee or the workplace will not constitute workplace harassment.
While this is a positive, employer-friendly development, it remains to be seen how effective it will be in addressing frivolous workplace harassment complaints. The only decision to date addressing this amendment noted that the Ontario Labour Relations Board has always expressed caution that it should be careful not to characterize reasonable employer conduct as workplace harassment, leaving employers to wonder if the Board will alter its approach to such complaints at all.
Beyond the amendments to the OHSA, Bill 132 made amendments to a number of other statutes. For example, it amends the Residential Tenancies Act to reduce the amount of notice that a tenant is required to provide upon termination of a tenancy (from 60 days to 28 days) when that tenant or a child residing with the tenant is deemed to have experienced violence or another form of abuse. The amendments also provide a joint tenant who has experienced similar conditions of violence or abuse with the ability to terminate his or her personal interest in a tenancy.
Bill 132 also amends various statutes to remove limitation periods for certain civil or criminal proceedings relating to sexual violence. Further, it amends education-related legislation to impose additional obligations on colleges, universities, and private career colleges with respect to incidents of sexual violence involving students.
Next Steps for Employers
Undeniably, Bill 132’s primary impact has been on the workplace. Employers that may be unprepared or uncertain about the new landscape should act quickly and seek assistance as needed.
Employers may wish to consider the following:
- Policies. Review and update your workplace violence and harassment policies to be sure they are compliant with Bill 132’s requirements.
- Complaint Procedure. Ensure your workplace has clearly defined procedures for making a complaint and a consistent process to investigate complaints. Report the results of the process to the affected parties.
- Training. Ensure that everyone in your workplace is properly trained with respect to workplace violence and harassment prevention, and ensure that there is a culture of taking such complaints seriously.
- Risk Assessments. Given that incidents of workplace harassment (sexual and otherwise) are significant risks to employee mental health and absenteeism, consider conducting a holistic assessment of psychological health risks and implementing new wellness policies in the workplace in the course of addressing violence and harassment policies.