As set out by the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (Code), everyone has a right to work in a safe and healthy workplace, free from harassment. An employer in Ontario has responsibilities as set out by the OHSA, including the development and implementation of policies and programs for workplace harassment prevention. Under the OHSA, workplace harassment means a course of vexatious comment or conduct against a worker that is known, or ought reasonably to be known, to be unwelcome. It includes harassment that happens virtually, for example by email, text message or video call.
Harassment In The Workplace
Any form of harassment can be a harrowing experience for the victim. Sexual harassment in the workplace is of particular concern because it can inhibit an individual from making a living by affecting their performance and comfort. Anyone is vulnerable to sexual harassment regardless of their authority, gender, creed, or ethnicity – so it is an issue that can affect any of us.
Concerning sexual harassment, the Code also places the responsibility on the employer to maintain an environment free from sexual harassment. An effective sexual harassment policy will be able to limit harm and reduce liability. An employer violates the Code where it directly or indirectly, intentionally or unintentionally, infringes on a person’s human rights, or authorizes, condones, or adopts behaviour contrary to the Code.
What Is Workplace Sexual Harassment?
Workplace sexual harassment is defined in the OHSA as a course of vexatious comment or conduct against an employee or other worker because of sex, sexual orientation, gender identity or gender expression, where the comment or conduct is known, or ought reasonably to be known, to be unwelcome. It includes conduct that happens virtually, through the use of information and communications technology.
It will also constitute sexual harassment in the workplace where a person makes a sexual solicitation or advance and that person is in a position to confer, grant or deny a benefit or advancement to the employee and knows or ought reasonably to know that the solicitation or advance is unwelcome.
In both instances, it should reasonably be known that the sexual conduct, comments or advance is unwelcome. It is the employer’s responsibility to make sure that incidents and complaints are investigated in a way that is appropriate in the circumstances, and to inform the employee who complained, and the alleged harasser if he or she works for the employer, of the results in writing. Failing to conduct an adequate investigation of a sexual harassment complaint could have legal consequences.
Employers have a responsibility to ensure that the work environment is free from sexual harassment. This includes preparing a clear, comprehensive policy on workplace harassment and reviewing it at least annually, as is minimally required by the provisions of the OHSA. Where six or more workers are regularly employed, the policy must be in writing and posted in the workplace or made available in a readily accessible electronic format.
In a situation where there is alleged sexual harassment, having a policy in place informs the parties of their rights, roles, and responsibilities, in addition to setting out how complaints of sexual harassment will be dealt with promptly and efficiently. This policy is required to be implemented through a workplace harassment program, developed in consultation with the joint health and safety committee or health and safety representative, if there is one. The program must include the procedure to report incidents, including where the employer or supervisor is the alleged harasser, how incidents and complaints will be investigated and dealt with, and how the parties will be informed of the results, among other things.
How Can Law Wise Help Employers?
We understand the importance of implementing policies and programs for workplace harassment prevention. Our lawyers can help draft policies and programs that comply with the various legal requirements expected of employers in Ontario.
We also assist our clients through the difficult process of managing workplace disputes and with defending the company’s reputation in the course of a legal proceeding, all the way to trial and appeal if necessary.
Call us at +1 647 948 7819 today!
How Can Law Wise Help Employees?
Employees who have been subjected to sexual harassment in the workplace have multiple options available, including an internal complaint under the employer’s workplace harassment program, a human rights claim or a lawsuit. An application to the Human Rights Tribunal of Ontario generally has to be filed within one year of the last incident. If you are an employee and need legal advice regarding sexual harassment in employment, please contact a Law Wise employment lawyer to set up a consultation and discuss your concerns.
Call us at +1 647 948 7819 today!