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Investigating Sexual Harassment: Employer Obligations Clarified with Bill 132

Sexual harassment has certainly been front and centre in the media over the past several months.  Whether it’s the ongoing news and allegations raised against a Canadian radio talk show host or the expulsion of MPs from the Liberal caucus, sexual harassment is top of mind for many employers and no workplace is immune to it.

In March 2016, the Ontario Government passed into law, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016.  As a result, employers now have a greater statutory obligation to address workplace harassment and sexual harassment.

Bill 168: The Precursor to Bill 132

Workplace sexual harassment is hardly a new thing. In April 2009, the government introduced Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace).  Bill 168 amended the OHSA and, in part, placed obligations on employers to develop and implement workplace violence and harassment policies intended to measure the risk of violence in the workplace from co-workers and from those who may attend or visit the workplace.  These obligations and duties were not tied to any one type of harassment; but rather, Bill 168 defined “workplace harassment” generally 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”.  Subsequent attempts to interpret Bill 168 identified ambiguity in the legislation regarding the extent to which employers were required to prevent and investigate workplace violence and harassment, including sexual harassment.  In redress of this, Bill 132 affords employers a more definitive list of requirements for which they are responsible.

Employer Specific Responsibilities Under Bill 132

While you may have already established policies to address workplace harassment and sexual harassment, Bill 132 requires the implementation of more comprehensive policies and procedures.  Employers must now ensure that as a matter of both policy and practice they:

  1. Conduct an investigation into complaints of harassment or sexual harassment;
  2. Ensure that information regarding a harassment or sexual harassment complaint will be kept confidential (except as necessary for the purposes of investigating the complaint);
  3. Inform a complainant of the results of the investigation;
  4. Inform a complainant about any corrective action that will be taken as a result of a complaint;
  5. If a supervisor is the alleged harasser, develop specific procedures for reporting the harassment;
  6. Consult with a joint health and safety committee or a health and safety representative, as applicable, on harassment policies & procedures;
  7. Review workplace harassment policies on a yearly basis; and
  8. Inform and train employees on the policies.

Essentially, this requires employers to put more thought and content into their harassment reporting procedures rather than merely indicating that harassment is prohibited and that any complaints will be investigated.  Harassment and sexual harassment policies under Bill 132 will have to meet a higher standard of compliance.

Non-compliance With Bill 132 May Result in Significant Consequences

In addition to imposing a general statutory duty to investigate workplace harassment and sexual harassment complaints, the Ministry of Labour’s inspectors have greater enforcement powers as a result of Bill 132.  They now have the authority to order an independent harassment investigation at the employer’s expense.  In more complicated complaint scenarios, this expense may be significant.  Additionally, penalties for non-compliance can result in a Ministry inspection, issuance of compliance orders, charges and/or fines under the OHSA.

Corporate Investigation Services (CIS) has been investigating harassment, workplace sexual harassment, policy violations, as well as other issues for employers since long before Bill 168 and Bill 132 made it mandatory. We would be pleased to be invited to discuss a cost effective investigative process with you and to be considered your choice of investigation agency should a circumstance arise. There are no costs for a consultation so please call 1.800.561.0574 or email us at anytime.