New sexual harassment laws coming soon to the workplace

On March 6, 2015, the Ontario Government published its plan aimed at addressing sexual violence and harassment in Ontario. The document is titled, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Action Plan”). The Action Plan has a lot to say about a very important subject and I encourage readers to review the entire document. This post though is limited to the Government’s recommended changes to the Occupational Health and Safety Act (“OHSA”) to deal with workplace sexual harassment.

Employers are already obligated to create a workplace harassment policy and to investigate harassment complaints under the Human Rights Code (the “Code”) and OHSA. Readers may recall that these OHSA obligations were introduced five years ago, under legislation commonly known as Bill 168. Amongst other things, Bill 168 imposed an obligation on employers to create workplace violence and harassment policies and programs, implement a complaint procedure, investigate complaints, and to undertake workplace violence risk assessments and warn employees of certain individuals with a violent history.

The Action Plan is proposing further changes to OHSA that would provide additional and specific obligations in relation to “sexual harassment”. These include:

• Specifically defining “sexual harassment” under OHSA. Currently, a definition of “sexual harassment” is present in the Code but not OHSA. However, OHSA does regulate “workplace harassment” and that is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
• Explicitly requiring employers to investigate and address workplace harassment, including sexual harassment complaints in the workplace. Currently, employers have this obligation under the Code. While there is a general obligation to investigate “workplace harassment” under OHSA, the Government is likely seeking to clarify that the same obligations apply to sexual harassment. In short, the Government is aiming to specifically confirm that sexual harassment is not only a human rights issue in the workplace but a workplace safety issue as well.
• Explicitly imposing an obligation on employers to make every reasonable effort to protect workers from harassment, including sexual harassment, in the workplace. Currently, section 25(2)(h) of OHSA states that employers are to take “every reasonable precaution in the circumstances for the protection of the worker.” Section 32.0.5 of OHSA states that “for greater certainty” this general prohibition applies with respect to “workplace violence”. There is no similar section in OHSA for “workplace harassment”. In other words, there is some doubt as to whether the general obligation to take “reasonable precaution” in the workplace applies to harassment as opposed to violence. The Government’s proposed change would make it very clear that the general obligation to protect workers would apply to “sexual harassment” (and likely “workplace harassment” as well). Again, the Government is aiming to specifically confirm that sexual harassment is not only a human rights issue in the workplace but a workplace safety issue as well.
• Creating a new “Code of Practice” for employers that outlines the steps employers can take to comply with the changes.
• Establishing a trained enforcement team of inspectors to deal with complaints of workplace harassment, including sexual harassment.
• Developing educational materials for employers.

It is clear from the recommendations that the Government is focused on making sexual harassment a workplace safety issue. Should these recommendations turn into legislative change, employers would have specific obligations under OHSA in relation to sexual harassment.

The specific OHSA language has not yet been introduced. We will keep you up-to-date on the implementation of the Government’s Action Plan. Given that this is a key issue for the Government, we can expect the above changes to occur sooner rather than later.

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McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP

McCarthy Tétrault through their blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more

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