Jian Ghomeshi. Bill Cosby. Liberal MPs Scott Andrews and Massimo Pacetti. We have seen shocking allegations of sexual harassment and violence in the workplace over the past year. Perhaps the one silver lining is that these high-profile cases have highlighted the deficiencies in the way that many workplaces address allegations of sexual harassment, and the laws that are intended to protect employees from it.
From the lawmaking perspective, the Ontario government has addressed the issue by introducing Bill 132, the Sexual Violence and Harassment Action Plan Act. The proposed changes will place additional obligations on employers to address and prevent incidents of workplace harassment by amending the Occupational Health and Safety Act (OHSA).
The Bill will expand the definition of “workplace harassment” to specifically include workplace sexual harassment. It will require that all incidents and complaints of workplace sexual harassment be appropriately investigated, that a complainant be informed of the results of the investigation and any corrective action, and that the employer’s workplace harassment program be reviewed at least annually. In addition, Bill 132 would amend the OHSA to include more specific procedural requirements regarding the investigations. Importantly, OHSA inspectors would be given the power to order an employer to commission an independent investigation and report at the employer’s expense.
If it becomes law, Bill 132 will have profound implications for employers. The Bill 132 amendments attempt to create workplace conditions that will prevent sexual harassment, in addition to compensating victims after the harassment has occurred. Sexual harassment will definitively become an occupational health and safety issue, rather than exclusively a human rights issue. This change is more than just semantics.
Currently under OHSA, employers are required to have a policy and program dealing with workplace harassment and violence, but the Ontario Labour Relations Board has consistently held that complaints related to sexual harassment in the workplace should be addressed under the Human Rights Code rather than under the OHSA. If implemented, Bill 132 will impose an explicit duty on employers to protect their employees from sexual harassment. Ministry of Labour inspectors will be empowered to enforce that duty.
These changes come at a time when the Human Rights Tribunal is taking sexual harassment more seriously and is awarding increasingly substantial damage awards, namely the unprecedented $200,000 in damages in compensation for injury to dignity, feelings and self-respect against the personal and corporate respondent in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 67.
There is no doubt that there are substantial financial consequences associated with workplace harassment. Employers may be faced with the threat of costly civil, criminal or human rights challenges. However, the financial consequences of workplace harassment are only one of many adverse effects that it can have on an organization. Workplace harassment can foster a toxic culture within an organization, which can have substantial adverse operational impacts on a business. Employee engagement can decline along with employee retention rates. In addition, an organization could become a public example of why stronger workplace sexual harassment laws are needed.
Bill 132 may not yet be law, but we strongly encourage employers to act proactively to address the threat that sexual harassment poses to their workplaces.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.