News Brief: Ontario’s Sexual Harassment Law Creates New Obligations for Employers

Ontario’s Sexual Violence and Harassment Action Plan Act (Bill 132), which amends various statutes related to sexual violence, sexual harassment and domestic violence, received Royal Assent on March 8, 2016, and will become law on Sept. 8, 2016.

The main goal of the bill is to better protect workers from the threat of sexual harassment and assault— which impacts 1 in 3 women in Canada. This will be accomplished by encouraging responsiveness to allegations of sexual violence and harassment.

Bill 132 will be especially important for employers, as it amends aspects of the Occupational Health and Safety Act (OHSA) to ensure that workplace harassment policies and programs are implemented. This, in turn, will help ensure that any workplace incidents of sexual harassment are appropriately investigated.

Broader Definition of Harassment

Bill 132 expands the OHSA’s definition of workplace harassment to incorporate workplace sexual harassment, which is defined as the following:

1. 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
2. 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.

Expanded Programs

Bill 132 will require employers to work with their joint health and safety committee or health and safety representative to develop and maintain a written program that implements the employer’s workplace harassment policy.

Employers must review these programs annually, along with doing the following:

• 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;
• Detail how incidents or complaints of workplace harassment will be investigated and dealt with;
• Set out 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;
• Spell out how a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken; and
• Include any prescribed elements.

New Employer Duties

In response to incidents or complaints of workplace harassment, employers must conduct investigations that are appropriate in the circumstances. Following an investigation, an employer must inform both the worker who has allegedly experienced the harassment and the alleged harasser (if he or she is also an employee) of the results of the investigation and of any corrective action that has been, or will be, taken.

Inspector Powers

Employers should note that inspectors now have the power to order an employer to conduct an investigation by an impartial third party, and to obtain a written report by that party, all at the employer’s expense. However, Bill 132 does not specify the circumstances under which an inspector can, or will, require a third party to conduct such an investigation.

Additional Changes

Bill 132 also includes amendments to the Ministry of Training, Colleges, and Universities Act; the Limitations Act, 2002; the Compensation for Victims of Crime Act; and the Residential Tenancies Act, 2006. These amendments require educational institutions to develop standalone policies related to sexual violence that aim to increase the rights of sexual violence victims and allow them to terminate residential leases on short notice if they are facing domestic or sexual violence.

Implications for Employers

Although Ontario’s Human Rights Code already requires employers to take steps to prevent sexual harassment in the workplace, Bill 132 makes sexual harassment a workplace health and safety issue. To ensure that they are compliant with the requirements of Bill 132 before Sept. 8, 2016, employers should do the following:

• Revise their policies and programs to account for the definition of workplace sexual harassment and to reflect the new requirements created by Bill 132;
• Establish a process to ensure that workplace harassment policies and programs are reviewed at least once a year; and
• Educate managers, HR professionals and employees on the requirements of Bill 132 and how it impacts workplace conduct.

To read the official news release from the Ontario government, click here.

The content of this News Brief is of general interest and is not intended to apply to specific circumstances. It does not purport to be a comprehensive analysis of all matters relevant to its subject matter. The content should not, therefore, be regarded as constituting legal advice and not be relied upon as such. In relation to any particular problem which they may have, readers are advised to seek specific advice. © 2016 Zywave, Inc. All rights reserved.