In response to the provincial government’s March 2015 report entitled “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment,” the Ontario legislature passed Bill 132 – Sexual Violence and Harassment Action Plan in March 2016, which entered into force in September of that year. This Bill amended Ontario’s Occupational Health and Safety Act (OHSA), establishing specific requirements with respect to sexualized harassment and violence prevention in Ontario’s workplaces. In turn, employers have since had additional responsibilities to understand, address and eliminate workplace sexual harassment and violence beyond previous measures. This requires sound and updated workplace policies, sufficient workplace training, and additional competencies to ensure compliance with the OHSA via, amongst other things, informed and diligent workplace investigations.
Revised Definition of “Workplace Sexual Harassment”
Importantly, Bill 132 expanded the definition of “workplace harassment” to include sexual harassment, bringing it more squarely within the purview of the Occupational Health and Safety scheme (section 32.0.1) and entrenching it as an independent basis for employer concern and investigation. The current definition is 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.
This definition must form the basis of any employer policies and training, as it outlines the scope or parameters of obligations to employees. Further, it entrenches employees’ rights to a workplace free from harassment or violence of any kind, mirroring the Ontario Human Rights Code (OHRC).
Employer Responsibilities Under Bill 132
Under the updated legislation, employers are required to do or implement the following as part of their Workplace (Sexual) Harassment and Anti-Violence policies:
- Ensure consultation with the employer’s Joint Health and Safety Committee or Health and Safety representative (where applicable);
- Include a reporting mechanism(s) for allegations of workplace harassment, including for when the alleged harasser is the employer and/or supervisor;
- Ensure that all complaints and allegations which the employer becomes aware of or ought to be aware of are properly investigated in a thorough and timely manner; and
- Expressly set out how complainants and respondents will be informed in writing of the results of any investigation and/or corrective action taken.
Additional Key Considerations for Employers
Employers should also be aware that Bill 132 empowers Ministry of Labour (MOL) health and safety inspectors with additional powers to enforce the OHSA. This includes the ability to order an employer to hire, at the employer’s expense, a third-party investigator to investigate and produce a report on a complaint or incident of workplace sexual or other harassment. To help facilitate compliance, the MOL has published a Code of Practice, designed to act as an employer’s guide to understanding its expanded obligations.
Further, Bill 132 also amended certain provincial legislation by removing limitation periods for certain civil or criminal proceedings relating to sexual violence if that proceeding was
- dismissed by a court and no further appeal is available; or
- settled by the parties and the settlement is legally binding.
SpringLaw Can Help!
Given the immensity of employers’ obligations under Bill 132, combined with the advent of awareness around workplace sexual harassment and violence brought about by the #MeToo movement, the onus is on employers to review and update their policies on workplace violence and harassment in all its forms to ensure compliance, and to implement appropriate complaint procedures and training protocols. Under section 32.0.3 (1) of the OHSA, employers must also conduct proactive risk assessments related to workplace sexual harassment and violence, as these pose significant risks to employee mental health, absenteeism, productivity and wellness.
If you need help navigating obligations under Bill 132, get in touch for a consultation! SpringLaw can provide you with everything you need to remain compliant with the OHSA while fostering safe working environments, from sample Workplace Harassment Policy and Investigation templates to a comprehensive Workplace Harassment Program or conducting investigations themselves.