On March 6, 2015 Ontario’s premier Kathleen Wynne tabled “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” The Ontario government plans to introduce legislation to support this action plan in the fall.
I agree It’s Never Okay but I don’t think the government’s action plan is the best way to affect change.
Sexual assault is a serious societal problem but not in most workplaces. The Action Plan does not suggest that there will be any changes to Ontario’s employment laws to address this issue so this blog will not address this issue other than to note that Ontario’s Occupational Health & Safety Act (“OHSA) prohibits workplace violence.
Sexual harassment under the Ontario Human Rights Code
Under the Ontario Human Rights Code (the “Code”), every employee has a right to freedom from harassment in the workplace because of sex.
The term “harassment” is defined in the Code but the term “sexual harassment” is not defined.
Sexual harassment under OHSA: A definition
One suggested change in the Action Plan is to include a specific definition of “sexual harassment” in Ontario’s OHSA.
There is a broad range of sexual harassment which can include: unwelcome sexual flirtation, advances, propositions or gestures; verbal harassment such as sexist jokes and innuendos causing embarrassment or offence, or that are, by their nature, clearly embarrassing or offensive; leering; derogatory or degrading remarks directed towards a person because of their sex or sexual orientation; sexually degrading words to describe a person; requests for sexual favours; graphic, verbal comments about an individual’s physical characteristics or clothing; inappropriate display of sexual pictures or materials that are considered offensive; intentional, unwanted physical contact; and verbal abuse, reprisal or threat of reprisal for rejection of a sexual solicitation or advance.
The definition chosen will determine what kind of behaviour will trigger the new OHSA obligations.
If the definition is incorporated into the current definition of “harassment” under OHSA then the law of sexual harassment in Ontario will be altered significantly.
Implications of including a definition of sexual harassment in OHSA.
For employers with 6 or more employees, this could mean:
- Workplace harassment policies must address sexual harassment.
- Workplace programs must include a complaint process for sexual harassment complaints
- Mandatory workplace training may have to include sexual harassment training
In 2010, most employers were required to create and post harassment and violence policies and programs. In 2014, employers were required to complete mandatory health & safety training.
Will the government’s proposed changes to OHSA oblige employers to revise these policies, and programs and provide more mandatory training? If so, will it be at the same time that employers are required to comply with the Employment Standards under the Accessibility for Ontarians with Disabilities Act which will be January 1, 2016 or January 1, 2017? I anticipate most employers will be devoting considerable resources to complying with AODA’s Employment Standards.
Refusing to work because of sexual harassment
Will the proposed changes to OHSA result in work refusals? If so, a Ministry of Labour (MOL) inspector will be required to determine whether sexual harassment has taken place and whether a poisoned work environment exists, and the inspector will be responsible for issuing orders to remedy the situation. If a female employee claims she can no longer report to a male supervisor who has sexually harassed her then will an inspector order the employer to remove the supervisor from the workplace or remove the supervisor’s supervisory responsibilities?
Complaints under the Human Rights Code and OHSA
The proposed amendments to OHSA may permit an employee who has been sexually harassed to file a complaint under the Code AND file a complaint under OHSA. If so, will there be parallel legal proceedings or will the Ontario Human Rights Tribunal defer to the MOL, or visa versa?
In theory, the Action Plan makes sense. In practice, I don’t think it will materially reduce the incidence of sexual harassment in the workplace. Instead, I am concerned it will create new statutory obligations that employers – especially small employers – will ignore. In this regard, one survey shows that 70% of employers are not complying with AODA. Given the number of new obligations that are being imposed on Ontario employers I don’t think the compliance rate for any new employment law will increase unless it is enforced with meaningful financial penalties. The AODA experience is instructive: there have been few AODA prosecutions and fines for a violation of AODA have been as low as $250 or $500.
An explosion of complaints to the MOL?
If OHSA is amended as discussed above, I think there will be a significant increase in the number of complaints to the MOL including work refusals. In a work refusal case, MOL inspectors will be required to decide whether sexual harassment is so serious that an employee is not required to continue working and whether sexual harassers should be removed from the workplace. The MOL does not enforce the Code. Accordingly, if these changes are made the government really should devote significant resources to human rights training for MOL inspectors before these amendments to the OHSA are implemented; otherwise, how will inspectors be expected to address nuanced issues like whether conduct amounts to sexual harassment or whether conduct has created a poisoned workplace.
An alternative approach
Sexual harassment is a human rights issue and a safety issue. In a perfect world, a government would adopt a two-prong attack on this societal problem. Assuming however the government does not have the resources to address sexual harassment from BOTH the human rights and safety perspectives, I think approaching sexual harassment from the human rights perspective is simpler, more effective and less costly than approaching this issue from the safety perspective.
From a human rights perspective, there is already an infrastructure in place (i.e. the Human Rights Code) with experienced decision makers (i.e. human rights adjudicators) and a relatively minor amendment to the Code could affect real change: that is, require employers to (i) prepare and post a human rights policy (which includes a prohibition against sexual harassment), and; (ii) investigate all complaints under the policy. This approach would have the added benefit of protecting employees who are subject to racial and other forms of harassment.
If senior management tells all employees that sexual harassment will not be tolerated in a written policy and encourages employees to file a complaint if harassment takes place then the message is clear: sexual harassment is a career limiting or ending move. What better incentive to modify behaviour?