New and Expanded Anti-Harassment Legislation Takes Effect in Ontario

A new law aimed at keeping Ontario workplaces free from sexual harassment and improving support for complainants went into effect on 8 September 2016. The legislation includes amendments to Ontario’s Occupational Health and Safety Act (OHSA) that increase employers’ responsibilities with respect to harassment that occurs in the workplace. This includes a new definition of workplace sexual harassment, requiring new elements that will need to be included in workplace harassment programs, and adding new employer duties that will help to protect workers from workplace harassment. In the legislation, the meaning of workplace harassment includes sexual violence, sexual harassment, and domestic violence. The expanded definition added to the Occupational Health and Safety Act states that “workplace sexual harassment” includes distressing, unwelcome comments or conduct against a worker due to their gender, sexual orientation, gender identity or expression. It also includes any type of sexual solicitation or advance by a person who is in a position of power over the worker, where the person should reasonably understand the advance would be unwelcome. For employers, Bill 132 presents important workplace related changes as it requires specific workplace harassment policies and programs to be in place and that incidents and complaints are appropriately investigated. Ministry of Labour inspectors will now have the authority to order a third-party investigation at the employer’s expense, especially if the internal investigation is seen to be flawed or incomplete. Under Bill 132 a workplace harassment prevention program must: Set out who would investigate if the alleged harasser is the employer. Larger companies may already have their own trained investigators, and smaller companies may need to hire an external investigator. Set out how confidentiality will be maintained. The policy must include procedures on how information is obtained during the investigation, including identifying information about any of the individuals involved. Provide written results of the investigation to the complainant and alleged harasser. New employer responsibility ensures written results of the investigation are shared with both the complainant and the respondent, including any action taken or to be taken. Ontario employers should already have a policy related to violence and harassment in the workplace. (The Ministry of Labour provides guidelines as well as an example of a workplace violence prevention policy.) Within their existing policy, the employer would then need to add measures to protect workers from sexual violence and harassment. Under the Ontario Human Rights Code, any of the following types of behaviour are forms of sexual and gender-based harassment: Gender-related comments about a person’s physical characteristics or mannerisms; Paternalistic comment or conduct based on gender, which undermines a person’s self-respect or position of responsibility; Demands for dates or sexual favours; Unwelcome physical contact; Suggestive or offensive remarks or innuendoes about members of a specific gender; Propositions of physical intimacy; Gender-related verbal abuse, threats or taunting; Leering or inappropriate staring; Bragging about sexual prowess or questions or discussions about sexual activities; Offensive jokes or comments of a sexual nature about an employee or client; Rough and vulgar humour or language related to gender, sexual orientation, and gender identity or expression; Display of sexually offensive pictures, graffiti or other materials, including through electronic means For more information: Workplace Violence and Workplace Harassment, Ontario Ministry of Labour Sexual and gender-based harassment: know your rights (brochure), Ontario Human Rights Commission

Canadian Centre for Occupational Health & Safety, 30 September 2016 ;http://www.ccohs.com ;