As part of the Ontario Government’s ongoing efforts related to “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”, it has now passed Bill 132 (Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016).
Bill 132 amends several pieces of legislation to extend protections to individuals who experience sexual violence, sexual harassment and domestic violence. For employers, Bill 132 imposes additional obligation with respect to the Occupational Health and Safety Act (“OHSA”) and the policies and programs already required under OHSA concerning workplace harassment. These changes come into effect on September 8, 2016.
Bill 132 expands OHSA’s definition of “workplace harassment” to include “workplace sexual harassment”, which is defined as:
- 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.
The Bill requires an employer, in consultation with a joint health and safety committee or a health and safety representative, to develop a written program that implements the employer’s workplace harassment policy. This program must then be reviewed at least annually.
The written program must describe, among other requirements: (1) measures and procedures for employees to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser; (2) how incidents or complaints of workplace harassment will be investigated and dealt with; (3) confidentiality assurances, unless the disclosure is necessary for investigating or taking corrective action, or by law; and (4) the manner in which the complainant and the alleged harasser (if s/he is an employee of the employer) will be informed of the results of the investigation and of any corrective action that has been, or will be, taken.
Employers must also provide employees with appropriate information and instruction on the contents of their workplace harassment policies and program.
Further, Bill 132 imposes a statutory obligation on employers to ensure that an investigation is conducted into incidents and complaints of workplace harassment that is “appropriate in the circumstances.” In conjunction with this, a new authority has been given to OHSA Inspectors to order an employer to conduct an investigation by an impartial third party at the employer’s expense.
On a final note, Bill 132 requires employers to inform not only the alleged harasser (if s/he is an employee of the employer) of the results and of any corrective action that has been or will be taken, but the complainant as well. This obligation will result in a change in practice for many employers, who have been reluctant to share disciplinary action with the complainant due to concerns about privacy.
We encourage employers to review their current policies and programs and update them to ensure compliance. Please contact us if we can be of assistance.