by Vita Gauley
The past year has pushed issues of workplace sexual harassment into the spotlight and became a topic of National news and considerable discussion. In response to the overwhelming media attention, several large corporations drop endorsements of those individuals affiliated with the allegations, media outlets align in the heavily scrutinized dissection of employer actions and even the Ontario government announced a package of initiatives designed to take action against sexual harassment and violence. With the topic of sexual harassment making headlines, it is appropriate that we engage you in a refresher and recommend that as an employer that you revisit and review your obligations to both prevent sexual harassment and respond to allegations of this nature.
The Ontario’s Human Rights Code (“Code”) provides that every person who is an employee has the right to be free from harassment in the workplace, including sexual harassment. This includes the right to freedom from sexual solicitation or advances by a person who may be in a position of authority. The Code defines “harassment” as “engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome”. “Employee” is broadly defined and may in certain circumstances include volunteers and independent contractors.
An employer has an obligation to provide a harassment-free workplace and to ensure that the workplace environment is not poisoned by inappropriate behaviours and attitudes, which through condoning or willful blindness arguably become normal and/or acceptable standards of the workplace atmosphere.
In 2010, we saw amendments to the Occupational Health and Safety Act (“OHSA”), commonly referred to as “Bill 168” amendments. As a result of the amendments employers are required to develop post and maintain policies and programs regarding workplace violence and harassment. Thus expanding the obligation imposed under the Code, to include all forms of harassment, not just those based upon a protected ground under the Code. The OHSA also required employers assess risks of workplace violence, conduct training, and take other prescribed steps to ensure a process and procedure to facilitate the reporting, investigation and potential resolution of workplace harassment complaints.
Employers should take this time to review their internal Workplace Harassment Policies and ensure that they have been properly communicated to employees and that employees have received the proper training. The prevailing obligation of every employer is to provide a workplace free of harassment, and to act quickly and definitively where complaints of sexual harassment are made. Consider whether you have hired new employees, introduced new on-site consultants or experienced a complaint of workplace harassment. If so, it is appropriate to conduct further training and education on the topic.
Prevention, and working towards a reasonable and suitable resolution when an issue arises, will assist in ensuring employees are provided with a harassment-free workplace and will mitigate against any liability the employer may incur in the event of a breach. Apart from those benefits in minimizing potential liability, it will serve to develop positive employee relations by confirming the employer’s commitment to providing a safe and respectful working environment.
Vita Gauley is an Associate at Lancaster Brooks & Welch, should you have any questions about sexual harassment in the workplace or any other workplace harassment issue, please contact Vita, or any of the members of the Labour and Employment Practice at Lancaster Brooks & Welch LLP in St Catharines at 905-641-1551