Workplace harassment in Ontario is a serious issue: according to Statistics Canada, nearly 1 in 2 women and roughly 3 in 10 men reported that they had experienced harassment or sexual assault in the workplace at some point.
For employers, fostering a safe and respectful workplace is not only a legal obligation but also a crucial aspect of maintaining employee satisfaction and productivity. Understanding your responsibilities under Ontario law as an employer helps ensure legal compliance and protects your organization from legal risks. Workplace harassment comes in many forms, including harassment, inappropriate sexual behaviours, and discriminatory behaviours, all of which create a hostile workplace environment for employees. This blog outlines the legal provisions relevant to harassment in Ontario workplaces and emphasizes the key responsibilities employers must fulfill to create a harassment-free workplace.
What is Workplace Harassment?
“Workplace harassment” is defined in Ontario’s Occupational Health and Safety Act 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, or workplace sexual harassment.” As alluded to above, workplace harassment refers to a broad spectrum of unwelcome behaviours in the workplace, ranging from discrimination to unwelcome sexual conduct. Ontario’s Human Rights Code provides a nearly identical definition of harassment.
Employers should be aware that harassment can take many forms, from overtly discriminatory actions to more subtle behaviours. Examples include:
- Social exclusion or isolation of an employee by managers or coworkers.
- Unwanted sexual advances or inappropriate touching.
- Derogatory remarks or jokes targeting an employee’s gender, gender identity, sex, sexual orientation, race, ethnicity, or disability.
However, some more nuanced behaviours can also be considered as harassment. For example, spreading rumours or gossip about a coworker, or persistently criticizing or belittling a coworker can amount to workplace harassment in Ontario.
The Legal Framework in Ontario
The Occupational Health and Safety Act sets out requirements that employers in Ontario must follow to minimize the risk of workplace harassment. Ontario’s Human Rights Code provides additional protections for employees. We’ll discuss these provisions further below.
Develop and Implement a Workplace Harassment Policy
Under s.32.0.1(1) of the Occupational Health and Safety Act, employers with more than five employees are required to prepare a workplace harassment policy. The workplace employment policy must be posted in a conspicuous location in the workplace and communicated to employees.
Note, too, that an employer’s duty relating to a harassment policy does not end once the policy is created; the policy must also be reviewed (and, when appropriate, updated) on at least an annual basis.
Employers Must Prepare a Program to Implement the Policy
In addition to a workplace harassment policy, employers must develop and maintain a written program for implementing their harassment policy in consultation with their health and safety committee (or a representative) under s. 32.0.6(1) of the Occupational Health and Safety Act.
The program must cover the following:
- How workers should report workplace harassment to their employer or supervisor;
- How workers should report workplace harassment when the alleged harasser is their employer or supervisor;
- How incidents or complaints of workplace harassment will be investigated and dealt with;
- Clarify that information obtained relating to workplace harassment will not be disclosed unless the disclosure is necessary for investigating or correcting the harassment, or is otherwise required by law;
- Clarify that a worker who alleges they have experienced workplace harassment and the alleged harasser will be informed of the results of the investigation and of any corrective action taken as a result of the investigation.
To the extent appropriate, employers must also communicate the contents of their written program to employees and review the program on at least an annual basis.
Employers Must Investigate Instances of Harassment
Employers are required to investigate both incidents and complaints of workplace harassment, and the investigation must be appropriate in the circumstances. Once an investigation has concluded, both the worker who allegedly experienced harassment and their alleged harasser must be informed in writing of the results along with any corrective action taken.
Preventing Liability Under the Human Rights Code
The Human Rights Code mandates that employers provide a workplace free from harassment on protected grounds, such as race, gender identity, and sexual orientation. Employers who fail to address harassment risk complaints to the Human Rights Tribunal of Ontario, which may order monetary compensation, non-monetary remedies, or actions to promote compliance.
Responding to Workplace Harassment Complaints
Employers should treat all harassment allegations seriously and respond promptly. Failing to address complaints adequately or not meeting obligations under the Occupational Health and Safety Act can result in Ministry of Labour investigations and reputational damage. To minimize liability and ensure compliance:
- Establish clear reporting procedures.
- Ensure your policies and programs are accessible and well-communicated.
- Take swift and appropriate action to address complaints.
Can Employees Sue for Workplace Harassment?
In some cases, employees may pursue legal action against their employer for workplace harassment, particularly if it results in severe emotional distress or constructive dismissal. Employers should work proactively to mitigate risks by addressing harassment complaints thoroughly and maintaining compliance with legal obligations.
Experienced Mississauga & Oakville Employment Lawyers
Navigating a workplace harassment issue can be complex, but ensuring compliance is crucial for employers to maintain a respectful and legally sound workplace. At Bader Law, we specialize in assisting employers with workplace policies, harassment investigations, and compliance with employment laws. Our skilled team of employment lawyers bring a wealth of experience to help protect your business and employees alike. Call us at 289-652-9092 or contact us online today to discuss your matter with our team.