Workplace Harassment Obligations Expanding for Ontario Employers

Effective September 8, 2016, Ontario’s Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) expands an employer’s obligation to identify, prevent, and investigate workplace harassment. Bill 132 expands the requirements of Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) of 2009, which was the first legislation in Canada requiring employers to take specific measures to address workplace violence and harassment by developing a program (including a written policy) to combat violence and harassment in the workplace.

Bill 132 makes a number of changes to Ontario’s Occupational Health and Safety Act (OHSA) as well as to other legislation outside the scope of employment law. The changes to OHSA include the following:

1. The definition of “workplace harassment” is expanded to include “workplace sexual harassment,” which is defined as:

(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.

This addition means that workplace sexual harassment is now an occupational health and safety matter as well as an Ontario Human Rights Code issue.

2. The legislation specifically clarifies that reasonable exercise of management’s rights is not harassment (or sexual harassment). It states that “a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”
3. Employers must now develop, review, and maintain their workplace violence and harassment programs in consultation with the joint health and safety committee or health and safety representative, as applicable. Previously, the legislation did not specify that an employer had to consult with anyone on the employer’s program.
4. The requirements for an employer’s workplace harassment program have been expanded as follows:
   1. Alternative reporting mechanism: An employer’s workplace harassment program must “include measures and 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.” Although the legislation does not specify precisely how an employer could comply with this, examples would include providing internal or third-party compliance hotlines, or alternative contacts in human resources and/or legal departments.
   2. Investigation requirements: The program must include a requirement that the employer will conduct an investigation into the alleged workplace harassment that is “appropriate in the circumstances.” More generally, the employer’s program must set out the general process for how incidents or complaints about workplace harassment will be investigated.
   3. Confidentiality: Information gathered concerning incidents or complaints of workplace harassment, including identifying information about any individuals involved, may not be disclosed unless disclosure is necessary for the purpose of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.
   4. Reporting investigation results to workers: Employers must report to the complainant, and to the respondent if the respondent is a worker, the results of the investigation and any corrective action to be taken. This report must be in writing.
5. Ministry of Labour inspectors can order third-party investigations: Ministry of Labour investigators now have the power to order an employer to engage an “impartial person possessing such knowledge, experience or qualifications as are specified by the inspector” to investigate a workplace harassment complaint and provide a written investigation report. There are no guidelines in the act for when this could be done, and it appears to be an entirely discretionary power.

It remains to be seen what the impact of Bill 132 will be on Ontario’s workplaces. What is evident is that, starting September 8, 2016, Ontario employers will have significantly more onerous investigation, reporting, and compliance obligations in respect to workplace harassment.