On September 8, 2016, Bill 132 on Harassment and Sexual Violence in the Workplace took full effect.
Bill 132 expands on Occupational Health and Safety Act’s Bill 168 – Violence in the Workplace by adding harassment and sexual violence in the workplace to the definition. In addition, there is substantial responsibility for the employer and supervision which has not existed in the past. And employees also gain new rights and responsibilities – they are now required to report incidents of violence and harassment in the workplace.
This bill effectively means that employers have new mandatory obligations to ensure the safety of workers from workplace violence and harassment of any kind. The Bill 168 instituted policies, but did not really require employers to protect workers from violence, harassment or sexual harassment. Headline news of high profile Canadians in recent months show clearly that these types of violence and harassment are still in the workforce. The ultimate goal is to reduce or, ideally, eliminate harassment and violence from the Ontario workplace.
With the new bill comes a broader definition of harassment. There are two parts to the new definition:
1 – 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
2 – 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 reasonable to be known to be unwelcome or; making a sexual solicitation or advance where the person making the solicitation or advance is in a positions 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.
Unwelcome refers to a behaviour or communication that is considered unpleasant by the recipient. It is not the person delivering the comment or behaviour that determines whether or not it is unwelcome.
Examples of harassment include: inappropriate jokes; invasion of personal space; vandalism or graffiti; setting someone up to fail; pranks; lewd remarks in any form; yelling; damaging someone’s reputation via gossip; extreme micromanaging.
Examples of sexual harassment include communications of a sexual nature which can be verbal, written or electronic; inappropriate or unwanted touching; lies or gossip about the person’s sex life, orientation or romantic activities; unwanted flirtatious comments or compliments pornographic or graphic pictures; staring or ogling at a particular sexual body part; stalking; touching oneself sexually around others; standing too close or brushing up against another person unnecessarily.
Sexual harassment may also occur with undue influence, i.e. quid pro quo behaviour. E.g. ‘if you join me for dinner we can talk about your promotion”, “I’ll buy your product if you assign Suzie to my account”, “I can make that happen for you if you will go out with me”.
According to the bill, “A reasonable action taken by an employer or supervisor relating to the management and direction of the workers or the workplace is not harassment”.
Your organization should have tools in place to educate, train and respond to harassing behaviour such as codes of conduct, policies, training and written programs.
What should you have done to be compliant with OHSA’s Bill 132 by September 8, 2016?
- Ensure you have a written policy;
- Include measures for reporting incidents to a person other than the person’s supervisor if the supervisor is the alleged harasser;
- Detail how incidents of complaints of workplace harassment will be handled and investigated;
- Detail how details of an investigation or complaint will not be disclosed unless the disclosure is necessary for the investigation or corrective action or required by law;
- Detail how the alleged victim and harasser (if a worker) will be informed of the investigation results and any corrective action arising out of the investigation.
New duties will be imposed on the employer to ensure:
- An investigation is conducted into incidents or complaints of workplace harassment;
- The alleged victim and harasser are informed in writing of the investigation results and any corrective action
- The employer’s workplace harassment program is revised every year;
- The employee’s receive adequate training about the employer’s workplace harassment policy and program.
The Ontario Ministry of Labours Inspector now has the power to order an employer to use a third party investigator to deal with workplace harassment incidents and to issues a written report at the employer’s cost.
This is clearly additional but important work for employers. If you need help understanding these changes or support getting through the requirements, send me a note at shisey@localhost or call The Osborne Group – 416.498.1550.
