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. 
Continue Reading Sexual Harassment and Assault at Work: Options for Legal Redress – Part I

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:
Continue Reading ONCA upholds employer for-cause termination for sexual harassment

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

trauma-informed workplace investigationsJoin us for Part 2 of this webinar series. Dealing with Harassment, Bullying and Sexual Violence in the Workplace, as we do a deep dive into Trauma-Informed Workplace Investigations (TII).  SpringLaw’s Flo Vineberg and Emily Siu will discuss the role of a Trauma-Informed Workplace Investigator and best practices for employers.

Date: Wednesday, November 17, 2021
Time: 10:30-11:00 am EST
Register: Click here!

Continue Reading Free webinar: Trauma-Informed Workplace Investigations

Free webinar: Dealing with Harassment, Bullying, and Sexual Violence in the WorkplaceOctober is National Bullying Prevention Month. Harassment, bullying, and sexual violence in the workplace continue to persist. Last month, Western University dealt with several sexual assault allegations. What does this mean for employers?

Join SpringLaw’s Flo Vineberg and Emily Siu as they discuss sexual assault, harassment, and violence in the workplace, as well trauma-informed workplace investigations.

Date: Wednesday, October 20, 2021
Time: 10:30-11:00 am EST
Register: Click here!

Continue Reading Free webinar: Dealing with Harassment, Bullying, and Sexual Violence in the Workplace

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

Workplace harassment and the employer’s duty to correct it
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Occupational health and safety legislation in Ontario protects workers from the risk and harm of harassment at work. Under the Occupational Health and Safety Act (OHSA) employers have a legal duty to guard against and correct workplace harassment no matter how small the team. 

Here are some things to keep in mind regarding workplace safety and the employer’s obligations. 

Harassment Can Go By Many Names

Bullying is harassment. Employees sometimes think that the form of harassment they are facing is less serious than the harassment that OHSA targets. But any euphemism for harassment, like bullying or mocking, doesn’t make it less harmful to workplace health and safety. Even lighthearted bullying can count as harassment under OHSA and the employer will have a duty to prevent and act on it. OHSA says that:
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new tort of internet harassment
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In Caplan v. Atas, 2021 ONSC 670 the Ontario Superior Court has recognized a new tort of internet harassment or “harassment in internet communications” to be precise. Notably, there is no tort – meaning you cannot sue someone – for just plain old harassment. 

The facts of the Caplan case giving rise to this new tort involved some extreme, wide-reaching and long-lived behaviour on the part of the defendant, Ms. Atas. The case involved multiple plaintiffs, all of who had been victims of Ms. Atas’ online harassment campaigns. A family member of one plaintiff found “80,000 unique search results attributable to Atas, related to some 3,747 online posts, on 77 different web sites, directed against 150 different victims.” 
Continue Reading New Tort of Internet Harassment

romance in the workplaceSpringLaw’s Lisa Stam joined ADP’s Jeff Livingstone, host of the Insights@Work podcast for a conversation about romance in the workplace.

As Jeff explains, “When professional and personal lives co-mingle, it’s only natural that romantic work relationships happen.  While merging romance and work might sound like an ideal situation, navigating office politics and HR policies present

Julie Payette and Rideau Hall's toxic workplace
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Rideau Hall is the latest workplace to become famous for its toxicity. The story of Julie Payette’s reign and downfall serves as an important reminder for workplaces. The law attempts to protect employees from violence and harassment in the workplace with both proactive and reactive requirements. However, when the offending behaviour comes from the very top, as was the case for the Rideau Hall employees, feelings of powerlessness are pervasive. 

The independent workplace report resulting from a review of the circumstances at Rideau Hall reported that 43 employees described the work environment as “hostile.” Out of 93 current and former employees interviewed, only 10 described the work environment in neutral or positive terms. 
Continue Reading Workplace Lessons from Rideau Hall