Recently, the highly publicized sexual misconduct allegations against Harvey Weinstein have led to a public dialogue about sexual harassment and sexual assault. In the wake of the allegations against Mr. Weinstein, actress Alyssa Milano posted on Twitter “…If all the women who have been sexually harassed or assaulted wrote “Me too” as a status, we might give people a sense of the magnitude of the problem”. Within days, millions of women and men came forward and published messages using #MeToo and similar hashtags.
In the employment context, these recent events serve as a reminder for employers of the prevalence of sexual harassment and the importance of taking reports of sexual harassment seriously. To begin with, it is important that employers know their legal obligations. In Ontario, the Occupational Health and Safety Act (the “OHSA”) requires that employers take every precaution reasonable in the circumstances for the protection of a worker. The OHSA’s definition of workplace harassment specifically includes workplace sexual harassment. The OHSA requires employers to prepare a policy with respect to workplace harassment, as well as a program to implement the policy.
It is recommended that an employer’s policy include examples of the types of behaviours that may constitute workplace sexual harassment (in addition to including the definition set out in the OHSA) to help employees better understand what workplace sexual harassment is and properly identify problematic behaviour in the workplace.
The program that accompanies the policy must include reporting procedures, how to make a complaint when an employee’s supervisor is the alleged harasser, how the employer will investigate and deal with complaints, how information obtained in the investigation process will be kept confidential (unless the disclosure is necessary for the purpose of the investigation or taking corrective action, or is otherwise required by law), and how the complainant and alleged harasser will be informed of the results of the investigation and any corrective action. Employers must also provide employees with instruction on the contents of the policy and program.
When a complaint is raised, the OHSA expressly requires that employers conduct an investigation that is appropriate in the circumstances. The phrase “appropriate in the circumstances” is not defined in the legislation, but suggests that employers may be liable if they fail to properly investigate a complaint of workplace harassment. It is important that employers take complaints seriously, investigate complaints in a timely manner, and implement appropriate corrective action where warranted. Employers are also expressly prohibited from actually or threatening to dismiss, discipline, impose a penalty against, or intimidate or coerce an employee because the employee has made a complaint or otherwise sought enforcement of the OHSA.
Particularly with the holiday party season fast approaching, it is important that employers be aware of their legal obligations, have the appropriate measures in place to protect employees from workplace sexual harassment, and appropriately respond to problematic behaviour in the workplace and at work related events. Employers are encouraged to consult with local labour and employment counsel in order to have their existing policies and programs reviewed for compliance with applicable federal or provincial health and safety and/or human rights legislation regarding workplace sexual harassment.