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Employers upcoming responsibilities regarding sexual harassment in Ontario

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On March 8, 2016, Ontario Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, received Royal Assent.

Schedule 4, which deals with changes to the Occupational Health and Safety Act regarding workplace harassment, comes into force September 8, 2016.

The changes will do a few of the following things:

Firstly, the definition of “workplace harassment” is changed to include “workplace sexual harassment”.

“Workplace sexual harassment” is defined as:

(a) 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

(b) 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.

Secondly, there is an acknowledgement that reasonable actions taken by an employer or supervisor relating to the management and direction of workers or the workplace does not constitute workplace harassment.

Thirdly, employers must have updated workplace harassment policies, procedures and training in place by September 6, 2016. In addition to the already existing responsibilities to have a workplace harassment program, the programs must:

  • include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • specify how incidents or complaints of workplace harassment will be investigated and addressed; specify how information obtained about an incident or complaint, including identifying information about any individuals involved, will not be disclosed unless necessary; and
  • specify how the results of the investigation and any corrective action will be communicated to the complainant and the alleged harasser.

Fourthly, employers must update their workplace harassment programs annually and ensure that they investigate incidents and complaints of harassment.

Fifthly, Ministry of Labour inspectors have the power to investigate workplace harassment complaints and the authority to order an impartial investigation at the employer’s expense.

Employers are recommended to review their existing policies and ensure that they will be in compliance by September 2016.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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