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Sexual Harassment and Assault at Work: Options for Legal Redress
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Introduction – Part I

In the wake of the #MeToo era, a burgeoning consciousness has grown around the existence of and need to address sexual harassment and sexual assault in the workplace. Individuals of all genders and orientations have found the courage to come forward, and legislation in Ontario has made it mandatory for employers to sufficiently investigate these allegations in a timely and comprehensive manner. Trauma-informed Workplace Investigations inherently require a sound understanding of power dynamics and nuanced forms of sexual harassment. New hybrid work models pose unique obstacles for enforcing cyber-bullying and anti-discrimination/harassment policies, and have brought to the forefront the importance of building a workforce predicated on respect, plurality, accountability, legal compliance, and employee well-being. As part of this, employees who experience sexual assault and/or harassment in the workplace may have different legal options at their disposal. 

In Part 1, we begin here with a  review of three possible options. 
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ONCA upholds employer for-cause termination for sexual harassment
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Overview

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.  

Background

A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:
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Background

In a recent decision, EN v Gallagher’s Bar and Lounge, 2021 HRTO 240 (CanLII), the Human Rights Tribunal of Ontario (the “HRTO”) found that an employer discriminated against three of his employees based on their gender identities, gender expressions, and sex by subjecting them to trans-and homophobic language, intentional outing, and by misgendering them through his refusal to use their preferred pronouns. 

The three Applicants, referred to as EN, JR, and FH, were kitchen employees at a restaurant managed by its owner, Jamie Gallagher; each identified as either gender queer or non-binary, using the chosen pronouns ”they/them.” They openly requested to be addressed with these pronouns. 
Continue Reading HRTO: Employer Liability for Proper Pronoun Use

Bill 27 Working for Workers Act 2021 and Disconnecting from Work Policies
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As a result of the Covid-19 pandemic, Ontario’s labour market has experienced significant disruptions and a permanently shifted work landscape. Employers are grappling with redefined work locations, rapidly changing public health standards, and the need for economic revitalization. As part of the province’s recovery scheme, Monte McNaughton, Minister of Labour Training and Skills Development, established the Ontario Workforce Recovery Advisory Committee (OWRAC). The Committee’s mandate is to “provide recommendations to position Ontario as the best place in North America to recruit, retain and reward workers.” Its work centers around three pillars: economic recovery, strengthening Ontario’s competitive position, and supporting workers. Integral to the Committee’s work were community stakeholder consultations involving workers, employers, and unions, which invited submissions by July 31, 2021. 
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Recent Changes to the Federal Government’s Covid-19 Benefits Schemes
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As of Saturday, October 23, 2021, a suite of federal benefits formerly slated for both individuals and small businesses was set to expire following several extension periods. In partial response, the federal government has earmarked $7.4 billion for new programs intended to maintain some level of support for businesses and individuals throughout the Covid-19 pandemic.

What Is Set To Expire?

On October 23, 2021, the Canada Emergency Rent Subsidy (CERS) and the Canada Emergency Wage Subsidy (CEWS) both expired after their initial implementation in 2020. The Budget Implementation Act would allow the government to extend these programs to November 30, 2021, however, anything beyond this time frame would require the introduction of new legislation. Under the CERS, businesses have a monthly cap of $75,000 on eligible expenses that can be claimed per business location, and $300,000 in total for all locations. In our discussion below, there is potential for an increase in this monthly cap. 
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Bill 132 - Sexual Violence and Harassment Action Plan Date
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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.
Continue Reading Understanding your employer obligations under Bill 132 – Sexual Violence and Harassment Action Plan