New sexual harassment protections and employer obligations in Ontario

The Ontario Human Rights Code has for some time prohibited sexual harassment in employment. Building on these protections, the Government of Ontario has introduced new legislation addressing sexual harassment under the Ontario Occupational Health and Safety Act (OHSA).

Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (Act) recently received royal assent, less than five months after being introduced in the Legislative Assembly. The Act reflects the government’s commitment to prevent and address sexualized violence and amends six statutes. This update exclusively addresses key amendments to the OHSA.

First, the Act amends the definition of “workplace harassment” in the OHSA to explicitly include “workplace sexual harassment.” Workplace sexual harassment is defined 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 to 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.

Second, the Act imposes obligations on employers to have updated workplace harassment policies, procedures and training in place by September 6, 2016. While employers currently have an obligation under the OHSA to establish workplace harassment programs, the Act expands this obligation by specifying that programs must:

• 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;
• Specify how incidents or complaints of workplace harassment will be investigated and addressed;
• Specify how information obtained about an incident or complaint, including identifying information about any individuals involved, will not be disclosed unless necessary; and,
• Specify how the results of the investigation and any corrective action will be communicated to the complainant and the alleged harasser.

Third, the Act imposes an obligation on employers to update their workplace harassment programs annually and to investigate incidents and complaints of harassment.

Finally, the Act broadens the authority of Ministry of Labour inspectors investigating complaints of workplace harassment, including workplace sexual harassment, by granting them the authority to order an impartial investigation at the employer’s expense.

These amendments to the OHSA are an important step in executing the government’s Action Plan to Stop Sexual Violence and Harassment as they recognize that workplace sexual harassment is not only a human rights issue, but also a workplace safety issue.