Workers Health & Safety Centre

New Ontario law expands employer duties to address workplace sexual harassment

New Ontario law expands employer duties to address workplace sexual harassment
Ontario employers now have a legal duty to create a workplace sexual harassment program and must do so in consultation with worker health and safety representatives.
 
In passing Bill 132, Sexual Violence and Harassment Action Plan Act, the government amends six pieces of legislation to roll out their action plan across the province. 
 

New employer duties

Specific amendments to the Occupational Health and Safety Act (the Act) add to employers’ existing duties by requiring greater accountability with regard to workplace sexual harassment, including:
  • Developing and maintaining a written program to implement the sexual harassment policy in consultation with the joint health and safety committee or representative. (As a result of feedback from workers and their representatives, this consultation was the one significant change made to Bill 132 as it made its way through to passage.);
  • setting up procedures and measures for workers to report incidents to someone other than their supervisor or employer, if those persons are the alleged harasser;
  • establishing how information obtained during harassment investigations may be disclosed;
  • ensuring investigations are appropriate to the circumstances;
  • communicating, in writing, the results of a harassment investigation to the worker and alleged harasser (if they’re an employee);
  • reviewing, at least annually, the harassment program.
 
Health and safety advocates welcome the new changes but suggest they fall short of providing workers with needed programs and protection against all types of workplace harassment. Bill 132 defines and specifies a process to address workplace sexual harassment. All other prohibited forms of harassment however do not appear to demand the same level of employer accountability.
 
According to the Ministry of Labour existing language in the Act is intended to cover all forms of harassment, defining workplace harassment as "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." As such the existing definition was drafted to cover all 15 prohibited grounds for harassment as set out under Ontario’s Human Rights Code, among them sex, religion and disability. In addition the Ministry says this language prohibits psychological and personal harassment.
 
With the changes, Ministry of Labour health and safety inspectors have new powers to order sexual harassment investigations, at the expense of the employer, by an impartial, qualified person.
 
Universities and colleges have additional duties to work with students to adopt campus-wide sexual violence and harassment policies and programs. The government is also committing funds for training front-line workers in health care, education, justice and hospitality sectors to enable them to better identify and respond during high-risk situations.

Issues unaddressed

Restricted access to investigation reports will limit use of that information in prevention efforts. Not deemed to be a health and safety report under the Act, employers are not required to share sexual harassment reports with the joint health and safety committee.
 
While many other Canadian jurisdictions have also enacted specific working alone regulations Bill 132 fails to address this significant risk factor for workplace violence and harassment, including sexual harassment.
 
On March 8, International Women’s Day, as Bill 132 received Royal Assent, the Ontario Human Rights Commission also weighed in with a new policy position on gender-specific dress codes. According to the Commission, sexualized and gender-specific dress codes may violate the Ontario Human Rights Code and may make workers more vulnerable to sexual harassment from others in the workplace.
 
Bill 132 comes into force on September 8, 2016.
 
Other related resources:  
With these changes, Ontario’s Occupational Health and Safety Act places adds to employers’ significant duties for addressing workplace violence and harassment. The Workers Health & Safety Centre (WHSC) offers a three-hour Workplace Violence and Harassment Prevention Training program designed to help workplace parties better understand workplace violence, harassment and bullying and to fully comply with the legal obligations. Be sure to check out WHSC’s compliance checklists for employers and workers and fact sheets on workplace violence, harassment and bullying. 
 
Need information? Check out WHSC Workplace Violence Resources
 
To learn more:
Visit www.whsc.on.ca 
Call  1-888-869-7950 and ask to speak to a WHSC training services representative.