Opinion Column

Ontario's tougher sexual harassment legislation

By Larry Schruder, The Delfi Group

Today we will explore new laws that come into effect in Ontario's provincially-regulated workplaces that are important for both employers and employees to be aware of.

On Sept. 8, Bill 132: Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) comes in to effect. This bill, which amends several important pieces of current legislation, is focused on raising awareness about sexual violence, discrimination and harassment and improving support for those affected by such issues.

One of the acts being amended is the Occupational Health and Safety Act (OHSA) - and all employers, large and small, along with their employees , need to be aware of these changes. Ontario's OHSA was amended a few years back through Bill 168 which required employers to strengthen employee protection from workplace violence and harassment.

Employers were obligated to institute workplace harassment policies and training programs to increase awareness and oversight to prevent incidents of workplace violence harassment. This new Bill 132 now expands the earlier definition of workplace harassment to also include workplace sexual harassment . Workplace sexual harassment is now defined in OHSA legislation as follows:

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 be known to be unwelcome, or

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.

"¢ Employers must address the following requirements to comply with this legislation:

all employers must have a policy and program that includes statements and processes related to workplace sexual harassment;

the program must be in writing and must be developed and maintained in consultation with any existing joint health and safety committee or health and safety representative;

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;

set out how incidents or complaints of workplace harassment will be investigated and dealt with;

set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless it is necessary for the purposes of investigating the complaint, taking corrective action or is otherwise required by law; and

set out how a worker who alleges workplace harassment and the alleged harasser will be informed of the results of the investigation and if any corrective action has been or will be taken.

"¢ employers must ensure that an investigation is conducted into all incidents and complaints of workplace harassment (including sexual harassment) and must inform the parties of the results of the investigation and any corrective action taken; and,

"¢ a Ministry of Labour inspector may order that an external, impartial third party investigate a complaint and prepare a report, at the employers' expense.

An important clarification for employers: Bill 132 also amends the OHSA to confirm that reasonable action taken by an employer or supervisor relating to the management and direction of workers does not constitute "workplace harassment" under the legislation.

This clarification should lessen any concerns that leadership actions that fall under the category of "legitimate management of the workplace" (ie, performance management , progressive discipline) will no longer be entertained as grounds for a workplace harassment complaint under the OHSA.

Just as employers are affected by these legislative changes, so too are all employees. Employees must ensure that their behavior, comments or gestures could not be interpreted as violating the definition of workplace sexual harassment as noted above.

Workplace comments and jokes of a sexual nature or related to sexual orientation or sexual expression, have always been inappropriate, but are now also illegal. Employees engaging in such behaviors at work can expect swift and serious consequences arising from complaints or awareness of such activity, and will be the subject of an internal or external investigation. Such is the law.

Employees who witness such actions being taken by others are encouraged to bring such behaviors to the attention of management - who are then obligated to investigate. The recipient of such harassment in the workplace is undoubtedly someone's spouse, sibling or child. In another workplace, it could be your loved one.

Employers - take note. The bar is rising quickly in relation to what is acceptable and unacceptable behavior in the workplace. If a situation comes to your awareness that appears to cross the line into workplace sexual harassment, The Occupation Health and Safety Act is not a piece of legislation to ignore.

I respectfully encourage you to re-visit your policy and program status to ensure compliance, review your mechanisms of ensuring supervisory and employee awareness, consider securing the availability of external investigation support for reported cases, and protect yourself and your employees in all matters related to Occupation Health and Safety. More specific information on this topic is available by consulting the appropriate Ontario Government websites or by contacting a representative of The Delfi Group.

Larry Schruder is president and co-owner of The Delfi Group, Pembroke and can be reached at larry.schruder@thedelfigroup.com.