Employers Take Note: New Obligations regarding Violence and Harassment Policies in the Workplace

The Ontario government recently introduced Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (the “Bill”). Among the many changes, the Bill builds on the Occupational Health and Safety Act (“OHSA”), focusing on Ontario employers’ duties to implement harassment policies and programs.

Expanded Definition of “Workplace Harassment”

The OHSA already requires employers to create violence and harassment policies and programs to keep workers safe in the workplace. The proposed Bill builds on the OHSA requirement, defining the types of verbal and physical conduct in the workplace that employees should be protected against.

The Bill defines “workplace harassment” as:

• Engaging in a course of vexatious comment or conduct against an employee in a workplace that is known or ought reasonably to be known to be unwelcome, or
• Workplace sexual harassment, which includes:
  1. Engaging in a course of vexatious comment or conduct against an employee in a workplace because of sex, sexual orientation, gender identity or gender expression, where the comment or course of conduct is known or ought reasonably to be known to be unwelcome, or
  2. Making a sexual solicitation or advance where the person making same is in a position to confer, grant or deny a benefit or advancement to the worker and person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Investigations

The proposed Bill also focuses on implementing an investigation system as part of employers’ violence and harassment policies and programs. This system would allow employees to report incidents of workplace harassment to an impartial third party, which is important if the alleged harasser is the supervisor or employer.

Section 32.07(1) of the proposed Bill creates a duty on Ontario employers to ensure:

• That an investigation is conducted that is appropriate in the circumstances, and
• That the employee, who allegedly experienced the harassment, and the alleged harasser, are informed in writing of the result of the investigation and any corrective action to be taken.

Impartial Investigators

Under the Bill, the Ministry of Labour inspectors are also given the ability to order that employers use impartial investigators, and that these investigators possess the knowledge, experience and skills as specified by the inspector.

In light of the proposed Bill, employers should review their workplace violence and harassment policies and programs to ensure that they include the expanded definition of workplace harassment and an investigation system for workplace harassment.