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December 2, 2015 from the November 30, 2015 issue.
Ontario proposes sexual
harassment legislation
Employers face new definitions, investigation rules
BY SARAH DOBSON
WHEN she was in her 20s, Debora
De Angelis said she was sexually
harassed at work. Tired of listening
to sexually explicit jokes for eight or
nine hours a day, she complained to
HR.
But there was no policy and
no legislation protecting workers
against this kind of behaviour,
and De Angelis, now national coordinator for strategic campaigns
at the United Food and Commercial
Workers Union (UFCW) in Toronto,
said she was further penalized at
work. In the end, the company went
under and De Angelis was the first
person to be laid off, despite her
long service.
“Even by complaining, when you
don’t have the proper structure,
you’re going to be penalized,” she
said.
As a result, De Angelis is encouraged by legislation looking to pass in
Ontario as part of the government’s
“It’s Never Okay” action plan to
change attitudes, improve supports
for survivors and make workplaces
and campuses safer and more responsive to complaints about sexual
violence and harassment.
The Sexual Violence and Harassment Action Plan Act would
amend the Occupational Health
and Safety Act (OHSA) to include
a definition of workplace sexual harassment, enhance requirements
regarding workplace harassment
programs and create specific new
employer duties to protect workers from workplace harassment,
including a duty to ensure incidents
and complaints are appropriately
investigated.
High-profile cases such as the
Jian Ghomeshi case — which saw
the former CBC host charged with
sexual assault — really put the
issues of sexual violence and harassment on the public’s radar, which
prompted the Ontario government
to act, said Jed Blackburn, an associate at Cassels Brock Lawyers in
Toronto.
And while amendments were
made to the OHSA back in 2010
with respect to workplace harassment, these were fairly general and
“did not specifically deal with the
issue of sexual harassment,” he said.
“There appears to be this perception that sexual harassment in particular is something that is perhaps
being swept under the carpet or not
addressed as proactively as it needs
to be, versus the more non-sexual
types of harassment which might
be dealt with in a more direct way.
“So I think the intent of this bill is
really to hone in on that issue, make
sure employers are more proactive
in dealing with it and, frankly, deal
with some of the vagueness of the
existing legislation.”
The changes won’t hugely extend
the practices of employers that are
current with the case law and best
practices but they do give a couple
of things “more statutory oomph,”
said Janice Rubin, a partner at Rubin
Thomlinson in Toronto.
“The problem clearly continues
to persist and this is an attempt to
remediate the persistent problem
in the workplace. And it’s based
on information that was gathered
through the hearing process since
(Ontario premier) Kathleen Wynne
announced her program, the ‘Never
Okay’ program, in the spring,” she
said.
“The fact of the matter is just because you have a policy doesn’t necessarily mean that people are behaving in accordance with the policy.”
There’s a lot of harassment happening, despite awareness, so the
culture isn’t really changing, said
De Angelis.
“Only through legislative changes can we sometimes make people
feel safer at work,” she said.
“The fact that now it’s in the Occupational Health and Safety Act, I
think, provides a legitimate grounds
for women to pursue… This has a
little bit more teeth because it’s going to force the employer to take this
issue seriously.”
A lot of women will not step forward and complain because they see
what happens to others and don’t
want to put themselves in that position, said De Angelis.
“The good thing about this legislation is the definition of workplace
harassment, sexual harassment,
is now written down, so there is
something that can be used, some
sort of protection that women can
have around the terms.”
Overall, this legislation may be
the push employers have been
waiting for when it comes to changing their culture and being more
inclusive and welcoming, said De
Angelis.
“Overwhelmingly, this is going
to be an economic benefit because
violence, harassment, that affects
workers’ productivity, sick days,
leaving work, quitting, having to
train somebody new, so I see this
legislation as benefiting everybody,
all the parties involved.
“We’re going to become more
aware of what sexual harassment
is, we’re going to have policies that
are going to help workers and, at the
same time, we’re going to have the
employer who is going to benefit
also economically.”
Definition expanded
In the proposed amendment, the
definition of workplace harassment
in the OHSA would be substituted
with “engaging in a course of vexatious comment or conduct against
a worker in a workplace that is
known or ought reasonably to be
known to be unwelcome” or “workplace sexual harassment.”
The latter would include vexatious comment or conduct because
of sex, sexual orientation, gender
identity or gender expression, along
with making a sexual solicitation or
advance where the person making such a move is in a position to
confer, grant or deny a benefit or
advancement to the worker and
should have known that such behaviour was unwelcome.
The definition is largely consistent with those in the Ontario
human rights code, said Blackburn, but “all of the employers’
existing obligations with respect to
workplace harassment now have
to also include workplace sexual
harassment.
“So if you have a policy in place,
which they must have, it will now
have to be revisited to ensure it addresses not just broader workplace
Page 1 © Copyright Thomson Reuters Canada Ltd. - December 2, 2015 - Toronto, Ontario, (800) 387-5164 - Web Site: www.hrreporter.com
harassment but also specifically
workplace sexual harassment.”
However, the proposed change
does state: “A reasonable action
taken by an employer or supervisor
relating to the management and direction of workers or the workplace
is not workplace harassment.”
That part speaks to management
concerns, according to Blackburn.
“There’s a recognition to the fact
that not all comments from employers and managers are going to be
welcome or non-critical, as part of
the management of the workplace.
There will be that need to address issues with employees, and that is not
harassment, it’s only going to these
other types of vexatious comments
and conduct.”
Greater responsibility
around investigations
When it comes to investigations,
the proposed amendment says
these should include measures and
procedures for workers to report
incidents of harassment to a person
other than the employer or supervisor if she is the alleged harasser.
The employer will also have to set
out: how incidents and complaints
of harassment will be investigated
and dealt with; which information
will be disclosed; and how alleged
victims and harassers will be informed of the results of the investigation and any corrective action
taken.
Employers would also have to
conduct an investigation “into inci-
dents and complaints of workplace
harassment that is appropriate in
the circumstances.”
This is an example of the more
specific duties being proposed as
“incidents and complaints” was noticeably absent in the prior act, said
Blackburn.
“That doesn’t mean it shouldn’t
have been conducted as part of a
policy, but there wasn’t an express
obligation on employers to investigate, so this is (saying) they have to
conduct the investigation and it also
sets out certain followup steps… so
that’s a bit of trend in this proposed
bill to more communication and
transparency, particularly with the
complainant,” he said.
When these changes do become
law, it is clear workplace investigations will suddenly become much
more important, according to Rubin. And since the act states “incidents and complaints,” it’s not necessarily exclusive to formal complaints under the employer’s policy.
“The folks internally who are
responsible for workplace investigations are going to have to understand what triggers a workplace
incident,” she said.
“And, second of all, the language
here is ‘that is appropriate in the
circumstances’ so, again, there’s
going to have to be some thought
as to what kind of investigations:
Is it always formal, is it informal?
So, absolutely, if an employer does
not now have competent internal
people to do their investigations,
now is really the time to add those
competencies.”
The risk of using somebody who
doesn’t know how to conduct an
investigation is not theoretical, said
Rubin, citing case law over the past
10 years where adjudicators, arbitrators and judges have commented
on the lack of skills of internal investigators and, as a result, their imposing liability on the employers.
Third-party involvement
As part of the amendments, an inspector may also order an employer
to conduct an investigation, at the
expense of the employer, by an impartial, experienced and qualified
person.
This part is new and different, yet
Bill 132 is not clear as to what those
circumstances are, said Rubin, so
hopefully there will be more “meat
on the bone there” as the regulations
are formalized.
“We don’t know how aggressively
that power on the part of inspectors
is going to be used — is it going to be
simply reactively?”
The most imaginable situation
would see an employee who has
made a complaint to her employer but either the employer didn’t
respond, didn’t investigate or responded appropriately, so she calls
in the Ministry of Labour, which
triggers an inspection, said Rubin.
It’s also possible ministry blitzes
would lead to investigations being
ordered.
To avoid having an independent
third party come in and do the
investigation, employers should
have proper policies in place, said
Blackburn.
“Employers who don’t have a
very specific policy, who don’t have
a very specific investigation process
put in place, will have to do a lot
more revision than those that have
more fulsome policies.”
Significantly, the inspectors can
set the qualifications the investigator has to have, said Blackburn,
and the employer must pay for the
investigation.
“It’s really creating an incentive
for employers to ensure that both
their policies and their internal investigations are done with an appropriate degree of diligence and thoroughness,” he said, adding a breach
of the duty to investigate could be
sanctioned under OHSA financially,
as well as exposing an employer to
other types of legal action.
And proper training will be required for the people conducting
investigations, he said.
“That’s an important skill set that
will only be increasingly important
for HR professionals.”
The changes would also remove
the limitation period for civil proceedings based on sexual assault —
and, in certain cases, sexual misconduct or assault.
This could have implications for
employers should an employee accuse a co-worker of sexual assault
three or four years after the incident,
said Rubin.
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